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Indiana professor files bias complaint

Indiana University Northwest, gay news, Washington Blade

Indiana University Northwest (Photo by Lord dumbello; courtesy Wikimedia Commons)

GARY, Ind.—An Indiana University Northwest professor alleges in a complaint she filed with the U.S. Department of Education on Dec. 1 that administrators denied her tenure because of her gender and her sexual orientation.

The Windy City Times reported Anne Balay, who is an assistant professor in the university’s English department, also filed a complaint with the Equal Employment Opportunity Council.

Balay told the newspaper she learned in April that her tenure had been denied.

She said a group of students described her as “angry and hostile because I’m a lesbian and a feminist —and also because I don’t pass people who aren’t passing.”

“When you’re in a targeted minority and people are angry, that’s where they go, so students will say ‘all she does is talk about sexuality,’” Balay told the Windy City Times. “That’s not true. I talk about sexuality as much as anybody else.”

The IUN Faculty Board of Review was scheduled to consider a complaint she filed with the university’s Office of Affirmative Action on Wednesday. An IUN spokesperson declined to comment on Balay’s allegations to the Windy City Times.

04
Dec
2013

Lesbian EEOC commissioner re-nominated for 2nd term

Chai Feldblum, gay news, Washington Blade

Chai Feldblum was renominated for a 2nd term on the EEOC (Photo courtesy of Feldblum)

A lesbian member of the Equal Employment Opportunity Commission is poised to serve another term after having played a part in a ruling that provided non-discrimination protections to transgender workers.

On Thursday, the White House announced that President Obama has selected Chai Feldblum for another five-year term on the bipartisan panel, which enforces federal laws against workplace discrimination.

Feldblum, the first openly LGBT person to serve on the EEOC, is credited with coordinating a unanimous decision last year in the case of Macy v. Holder that interpreted Title VII of the Civil Rights Act to protect transgender people. The commission reasoned the existing prohibition against gender bias in the workplace applies to transgender people.

Tico Almeida, president of the LGBT group Freedom to Work, praised Feldblum’s re-nomination and said she has “worked tirelessly to build bi-partisan consensus” to improve employment laws.

“Feldblum deserves our praise not only for her leading role in the unanimous EEOC decision in Macy v. Holder, but also for her leadership in drafting the EEOC’s new Strategic Enforcement Plan, which explicitly lists workplace protections for LGBT Americans among the Commission’s national priorities,” Almeida said. “Commissioner Feldblum has demonstrated a strong commitment to opening the EEOC’s doors to the LGBT victims of unfair discrimination who were previously turned away when they sought help from the Commission.”

Prior to serving on the EEOC, Feldblum was a nationally recognized gay rights attorney. She’s credited with the drafting the Americans with Disabilities Act, which was signed into law in 1990, and the Employment Non-Discrimination Act, which has yet to become law.

She’s also had experience in LGBT activism. Feldblum was the legal director for the Campaign for Military Service, a group that unsuccessfully fought in the early 1990′s against the enactment of “Don’t Ask, Don’t Tell.” She’s also the partner of Nan Hunter, a Georgetown University law professor with experience in LGBT cases.

Feldblum’s initial nomination to the EEOC faced difficulties in the Senate. One or more unidentified senators placed a secret hold on her and four other EEOC nominees. In March 2010, Obama cleared the way for her to serve by making a recess appointment. The Senate later confirmed her in December 2010.

24
May
2013

Trans victims of workplace bias find relief in historic decisions

Mia Macy, gay news, Washington Blade

The Justice Department has awarded Mia Macy relief on the basis that she was discriminated against by ATF because she’s transgender. (Screen capture from a Center for American Progress video).

Transgender victims of workplace discrimination are for the first time finding restitution in a pair of decisions handed down from the federal government finding anti-trans job bias at two institutions — one a federal contractor, the other an arm of the U.S. government.

The two decisions — first reported by Buzzfeed — are the result of the U.S. Equal Employment Opportunity Commission, which is charged with enforcing laws against workplace discrimination, finding last year in a historic, unanimous decision transgender workplace discrimination amounts to gender discrimination under Title VII of the Civil Rights Act.

One of the decisions is the culmination of litigation in that very case, known as Macy v. Holder, was initiated by the Transgender Law Center after the plaintiff was told she wouldn’t receive a job at the Bureau of Alcohol, Tobacco, Firearms & Explosives’s crime laboratory in Walnut Creek, Calif., after she announced she would transition from male to female.

On July 8, the Department of Justice — to which the case was remanded after the EEOC made its decision last year — issued a final decision finding Macy indeed faced discrimination when she applied for the position and awarding her relief.

“[T]his office finds that the ATF discriminated against complainant based on her transgender status, and thus her sex, when it stopped complainant’s further participation in the hiring process for the NIBIN Ballistics Forensics Technician Laboratory position,” the decision states.

After applying for the job, Macy was told in January 2011 that she would receive a position at the laboratory. But after she disclosed in March 2011 she would transition from male to female, the contractor informed Macy the position was cut. Later, she was told someone else was awarded the job.

The 51-page decision — which was signed by Complaint Adjudication Officer Mark Gross and Complaint Adjudication Office Attorney Carl Taylor — lays out several terms for relief in the Macy case.

First, the Justice Department says ATF within 60 days of the decision must offer Macy that job she was seeking at the Walnut Creek factory and award her back pay and benefits — with interest — for the period between April 2011 to January 2012.

Additionally, the Justice Department says ATF must take corrective action to ensure future discrimination never occurs again; award Macy compensatory damages for any injuries she may have received; refund Macy her attorney’s fees; and post a notice within 30 days consistent with employment law.

In the other case, another transgender victim of workplace discrimination this week reached a settlement in a case filed against a Maryland federal contractor, according to the LGBT groups Freedom to Work and Lambda Legal, which represented the plaintiff in the case.

Little information is public about this case because the groups agreed as part of the settlement to withhold the amount won in damages, the name of the plaintiff and the name of the federal contractor.

However, the groups did disclose the nature of the discrimination the victim suffered, which included physical and verbal harassment over a two-year period and name-calling such as being called “tranny,” “drag queen” and “faggot.”  According to the groups, the case moved forward after the EEOC reviewed the case and, in September 2012, issued a letter finding there was reasonable cause to believe the contractor engaged in transgender discrimination.

Tico Almeida, president of Freedom to Work, applauded EEOC for conducting a thorough examination that led to the victory for the alleged victim of transgender workplace discrimination.

“Coming just a few months after the EEOC issued its historic decision that transgender people are protected by Title VII of the Civil Rights Act, the EEOC’s reasonable cause determination in this case is, to our knowledge, the first time in history that the EEOC has investigated allegations of anti-transgender harassment and ruled for the transgender employee,” Almeida said. “This case shows that the EEOC takes very seriously its role in protecting LGBT Americans’ freedom to work.”

Since the Employment Non-Discrimination Act isn’t law and Maryland has no statewide protections against anti-transgender discrimination, Title VII was the only way for the plaintiff in the case to seek legal restitution in response to the discrimination she faced. If President Obama signed an executive order prohibiting anti-LGBT workplace among federal contractors, that could have provided another source of relief, but the White House continues to withhold that directive.

Greg Nevins, supervising senior staff attorney in Lambda Legal’s Southern Regional Office in Atlanta, said the case demonstrates more action is needed at the federal level to protect workers from anti-LGBT discrimination.

“We need action by the 113th Congress to pass the Employment Nondiscrimination Act, and even more immediately, President Obama should sign the executive order banning LGBT discrimination by companies that profit from federal contracts,” Nevins said. “That executive order should have broad support across the political spectrum, since federal dollars should neither fund discrimination nor go to employers whose personnel and productivity suffer because discrimination and harassment are tolerated.”

15
Jul
2013

U.S. Attorney challenges use of civil rights law

Peter TerVeer, gay news, gay politics dc

Peter TerVeer (Blade photo by Michael Key)

The United States Attorney for the District of Columbia filed court papers on Dec. 17 arguing that a gay man, who sued the Library of Congress for firing him because of his sexual orientation, failed to show he’s entitled to protection under Title VII of the U.S. Civil Rights Act of 1964.

The court filing by U.S. Attorney Ronald C. Machen Jr., who was appointed by President Obama, places the Obama administration in the awkward position of opposing a gay discrimination claim under Title VII.

In a lawsuit filed against the Library of Congress in August 2012, former management analyst Peter TerVeer, 30, says he was fired from his job after being harassed and humiliated for more than a year by a supervisor who repeatedly quoted biblical passages condemning homosexuality.

The lawsuit charges that although TerVeer was targeted because he’s gay, he suffered employment discrimination and harassment based on his gender, gender stereotyping and his religious beliefs, which he says didn’t conform to those of supervisor John Mech.

Title VII of the famed 1964 Civil Rights Act bans discrimination based on race, religion, ethnicity, gender and, according to recent court rulings, gender identity, but not sexual orientation by itself.

According to the lawsuit, TerVeer and Mech had a cordial working relationship from the time TerVeer was hired in February 2008 as a management analyst in the library’s Auditing Division. It says TerVeer received high performance ratings and two promotions between 2008 and 2010.

The lawsuit says Mech allegedly became hostile and unfairly critical of TerVeer’s work performance and created an unbearably hostile work environment after Mech learned TerVeer was gay.

The government’s filing of a motion to dismiss the case on legal and procedural grounds comes at a time when gay rights attorneys are seeking to persuade courts to treat anti-gay discrimination as a form of sex discrimination protected under Title VII.

“We believe that the allegations in the complaint are insufficient to substantiate a Title VII claim,” said Charles Miller, a spokesperson for the Justice Department’s Civil Division.

Miller pointed to an April 2012 ruling by the Library of Congress’s in-house equal employment opportunity division, which investigated TerVeer’s allegations of discrimination and harassment and dismissed an in-house complaint he filed in September 2011 on grounds that the allegations could not be substantiated.

“The Executive Branch is of course opposed to discrimination on the basis of sexual orientation, and this filing does not reflect any contrary policy,” Miller told the Blade.

But Christopher Brown of the D.C. law firm Ackerman Brown, which is representing TerVeer, said the government’s motion to dismiss the case “relies on legal precedent that excludes LGBT employees from protection under Title VII.”

Brown declined to comment further on the government’s arguments, saying TerVeer’s legal team prefers not to comment in detail on pending litigation.

Greg Nevins, supervising attorney for the gay litigation group Lambda Legal Defense and Education Fund, which is monitoring the TerVeer case, said the government’s motion to dismiss appears to be arguing that TerVeer did not present sufficient evidence to show that his supervisor targeted him for discrimination because TerVeer displayed mannerisms or behavior of a stereotypical gay man, which some might view as being effeminate.

“I think what the U.S. Attorney is saying here is a masculine gay man or a feminine lesbian would not be covered under Title VII,” Nevins said. “Some court rulings have essentially said Title VII does not apply to sexual orientation.”

In a landmark ruling last April, the U.S. Equal Employment Opportunity Commission declared that transgender people are protected against job discrimination under Title VII because bias against their gender identity is equivalent to sex discrimination. The EEOC ruling followed several appeals court decisions holding that transgender people were protected under Title VII.

Lambda Legal and other LGBT advocacy organizations say they hope to persuade courts that gay men and lesbians enjoy Title VII protections. They argue that sexual orientation discrimination is also linked to gender role stereotyping and bias, regardless of whether the victim is perceived as masculine or feminine.

TerVeer’s lawsuit says he also was targeted for retaliation after he filed his discrimination complaint with the library’s in-house EEO office, which is known as the Office of Opportunity, Inclusiveness and Compliance.

“Plaintiff’s discrimination and retaliation claims fall short,” Machen and two other government attorneys argue in their Dec. 17 motion seeking to dismiss the case, which was filed in U.S. District Court for the District of Columbia.

“Plaintiff alleges that he was subject to harassment after his employer learned that he was gay, and he presents his claim as one of non-conformity with sex stereotypes,” the motion to dismiss says. “But the detailed allegations in the complaint do not provide what courts have held is required to show that sex stereotyping was the cause of his employer’s actions.”

The motion to dismiss adds, “[C]ourts have generally required plaintiffs to set forth specific allegations regarding the particular ways in which an employee failed to conform to such stereotypes — generally relating to an employee’s behavior, demeanor or appearance in the workplace — and allegations to support the claim that this non-conformity negatively influenced the employer’s decision … In this case, however, plaintiff fails to offer anything more than the conclusory statement that, as a result of his sexual orientation, ‘he did not conform to the defendant’s gender stereotypes associated with men under Mech’s supervision.’”

One civil rights attorney familiar with the case, who spoke on condition of anonymity, said the U.S. Attorney’s office was fulfilling its role in defending its client — the Library of Congress — and should not be faulted for arguing against TerVeer’s attempt to invoke protection from Title VII.

“The government’s argument that the complainant fails to allege sufficient facts to state a claim … are typical arguments that they’d make equally if the plaintiff were female or black rather than gay,” the attorney said.

The government’s motion to dismiss the case is based mostly on procedural and legal grounds rather than on the merits of TerVeer’s specific allegations of discrimination and retaliation.

The government’s motion cites legal and procedural grounds to seek the dismissal of a separate claim in the lawsuit that the firing violated TerVeer’s Fifth Amendment constitutional right to due process and equal protection under the law.

In addition, it cites procedural grounds to call on the court to dismiss separate claims in the lawsuit that the library violated the Library of Congress Act, which bans discrimination based on factors unrelated to an employee’s ability to perform his or her job; and an internal library policy banning sexual orientation discrimination.

Library investigation finds no substantiation of discrimination

The motion to dismiss releases publicly for the first time the April 26, 2012 ruling by the library’s Office of Opportunity, Inclusiveness and Compliance (OIC) that rejects TerVeer’s allegations on grounds that they could not be substantiated or proven.

The 14-page ruling by the OIC, which was filed in court by the U.S. Attorney’s office as “Exhibit D,” was based on an in-house library investigation into a discrimination complaint filed by TerVeer on Nov. 9, 2011, according to OIC acting supervisor Vicki Magnus.

Magnus discusses the findings in an April 26 letter to Brown, TerVeer’s attorney, which the U.S. Attorney’s office submitted in court as part of Exhibit D.

“Based on the available evidence, the Office of Opportunity, Inclusiveness and Compliance (OIC) does not find sufficient evidence to support Complainant’s allegations that he was discriminated against based on religion, sex, and reprisal, and that he was subjected to sexual harassment and a hostile work environment in his meetings with supervisors regarding performance and in actions taken by supervisors regarding his performance,” Magnus said in her letter.

In what potentially could be damaging to TerVeer’s lawsuit, Magnus notes that the OIC investigation into TerVeer’s discrimination and retaliation complaint included interviews of and testimony by five of TerVeer’s co-workers. Each of the five testified that they personally observed less than satisfactory work performance by TerVeer, according to the OIC ruling.

In his complaint, TerVeer accuses his immediate supervisor, John Mech, and a higher level supervisor, Nicholas Christopher, of giving him a lower job performance rating based on anti-gay bias.

The five co-workers, “each of whom personally observed complainant’s performance, fully support the reasons presented by management justifying their decision to issue complainant poor performance ratings and to deny complainant a [performance based salary increase].”

Brown, TerVeer’s attorney, declined to comment on the OIC ruling or its potential impact on the lawsuit.

The library’s official reason for firing TerVeer was his failure to report to work after a leave of absence he requested and received permission to take had expired. TerVeer told reporters in a news conference in April that his doctor and therapist urged him to take a leave from work after the hostile work environment he said Mech created caused him to suffer severe emotional distress.

He said the library refused to grant his request to be transferred to another office under another supervisor, making it impossible for him to return to work.

02
Jan
2013

Year in Review: EEOC issues landmark decision banning trans bias

The U.S. Equal Employment Opportunity Commission (EEOC) ruled in April that job discrimination against employees due to their gender identity is equivalent to sex discrimination under existing federal law.

Transgender advocates joined legal experts in calling the ruling a historic development that provides transgender people in the public and private sector workforce with full coverage under Title VII of the U.S. Civil Rights Act of 1964.

“[W]e conclude that intentional discrimination against a transgender individual because the person is transgender is, by definition, discrimination ‘based on…sex,’ and such discrimination therefore violates Title VII,” said the commission in its 5-0 ruling.

The decision was handed down as part of its resolution of a case filed by the Transgender Law Center on behalf of Mia Macy, a transgender woman who charged that she was denied a job as a ballistics technician with the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives’ lab in Walnut Creek, Calif.

Macy alleged that ATF officials were in the process of hiring her but claimed the job was no longer available due to budget cuts after she informed them she was transitioning from male to female. She learned later that ATF gave the job to someone else.

Masen Davis, executive director of the Transgender Law Center, said it would be hard to overstate the significance of the EEOC decision.

“Transgender people already face tremendous rates of discrimination and unemployment,” Davis said. “The decision today ensures that every transgender person in the United States will have legal recourse to employment discrimination and with it a way to safeguard their access to vital employment benefits such as health insurance and retirement savings plans.”

27
Dec
2012