Articles Posted in Discrimination – Sexual Orientation and Gender Identity

Seldom do employee-side lawyers cheer a ruling for the employer, but the Ninth Circuit decision holding that homophobic behavior in the workplace is not justified by an employee’s right to religious freedom was correctly decided and is good for employees.

In Flanagan v. City of Richmond (Ninth Circuit June 19, 2017) No. 15-17258, Ms. Flanagan claimed she was fired for her religious disapproval of homosexuality.  The record reflected that she manifested this intolerance by, for example, forbidding a lesbian intern from entering the workplace, leaving her stranded in the waiting room and declaring that she wouldn’t be going to heaven.

The court observed that although Flanagan’s religious speech may have touched on a matter of public concern her free speech, when balanced against the “… interest in maintaining a discrimination – and harassment – free environment” must fail.

On June 24, 2013, the United States Supreme Court issued two rulings that were met with a roar of approval from equal rights advocates from coast to coast. Just days before the annual LGBT pride celebrations got underway nationwide, the Supreme Court struck down the Defense of Marriage Act (“DOMA”), and issued another decision which resulted in same-sex marriages resuming in the state of California.

Although the most obvious effect of Hollingsworth v. Perry is that same-sex couples once again have the right to get married in California, many same-sex couples are now wondering how their rights, if they choose to get married, will be impacted with respect to their employment. One of the many benefits same-sex spouses are now entitled to is family leave under the federal Family Medical Leave Act (“FMLA”).

In U.S. v. Windsor, the Supreme Court struck down a provision of DOMA that defined the term “spouse” as only a person of the opposite sex who is a husband or wife, and defined “marriage” as a legal union between a man and a woman. There are over 1,000 federal statutes that use the term “spouse,” and among them is the FMLA which provides up to twelve weeks per year of job-protected unpaid leave for covered employees. Prior to the U.S. v. Windsor decision, same-sex spouses could not take FMLA leave to care for each other because they were excluded from coverage by the opposite-sex definition of spouse in DOMA. Now, however, same-sex spouses are entitled to coverage under the FMLA and may take leave to care for their spouse with a serious health condition. Unfortunately, however, this decision does not have an impact on couples in recognized domestic partnerships or civil unions which means, same-sex couples who are not married are still without FMLA rights.