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Large US employers, particularly tech companies, have been vocal advocates of transgender rights and acceptance in recent years. Beyond public statements and activism, however, these organizations are also looking at ways to make their HR policies more inclusive of their transgender employees. Fast Company’s Lydia Dishman observed recently that major companies are doing making more of an effort to be trans-inclusive, particularly in terms of ensuring that their benefit plans cover gender-affirming health care:
The Human Rights Campaign, a leading advocacy group, announced last year that over 450 major U.S. employers now have policies to support employees through the transitioning process. Separate research from the International Foundation of Employee Benefit Plans (IFEBP) found that these numbers are inching up throughout the U.S. workforce. Twenty-two percent of the nearly 600 HR professionals surveyed said their health plans cover gender confirmation procedures, up from 8% in 2016; a quarter provide mental-health counseling pre- and/or post-surgery, up from 11% two years ago; and 24% cover prescription drug therapy, up from 9% over the same period.
However, these benefits are more likely to be found at large employers like Intel, with workforces in the tens of thousands, than at smaller ones; IFEBP found that only 10% of companies with fewer than 50 employees offer trans-friendly health benefits, up from 4% in 2016.
By way of example, Dishman looks at Intel, which introduced coverage for all gender confirmation procedures, following standards set by the World Professional Association for Transgender Health (WPATH), in 2016, with no maximum lifetime benefit; and Amazon, which began offering unlimited coverage for trans medical care in 2015. Starbucks announced late last month that it had updated its health insurance policy, with help from WPATH, to cover a wider range of procedures that insurers often label cosmetic and refuse to cover but that trans people and their health providers consider essential to their transition process:
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A skydiving instructor who was fired after disclosing to a client that he was gay had a valid discrimination claim under Title VII of the Civil Rights Act of 1964, the US Second Circuit Court of Appeals in New York ruled on Monday, finding that the protection against sex discrimination prohibited under Title VII was also applicable to sexual orientation. The suit brought by Donald Zarda, who died in a skydiving accident in 2014, had been dismissed last April by a three-judge panel, who cited a previous ruling from 2000 in which the Second Circuit held that Title VII did not apply to LGBT workers, but the court agreed to an en banc rehearing by all 13 judges, who decided 10–3 to reverse the panel’s decision.
In the opinion, written by Chief Judge Robert Katzmann, the court reasoned that “sexual orientation discrimination is motivated, at least in part, by sex and is thus a subset of sex discrimination”:
Because one cannot fully define a person’s sexual orientation without identifying his or her sex, sexual orientation is a function of sex. Indeed sexual orientation is doubly delineated by sex because it is a function of both a person’s sex and the sex of those to whom he or she is attracted. Logically, because sexual orientation is a function of sex and sex is a protected characteristic under Title VII, it follows that sexual orientation is also protected.
Katzmann advanced several additional arguments to underscore the court’s reasoning here: First, he used a “comparative test” that examined how Zarda’s employer would have responded if he were a woman and had he disclosed, as he did, that he was sexually attracted to men. Because he presumably would not have been fired in that case, his treatment depended on the variable of sex and thus, in the court’s view, constituted sex discrimination. He also pointed to Supreme Court precedent finding that Title VII protects employees from punishment for failing to conform to gender norms or stereotypes. Because homosexuality “represents the ultimate case of failure to conform to gender stereotypes,” Katzmann argued, discrimination on this basis constituted sex stereotyping, which Title VII prohibits.
Lastly, Katzmann deployed what Slate‘s Mark Joseph Stern describes as “perhaps the most persuasive theory of the case, the Loving principle”:
The White House is reviewing guidelines proposed by the Equal Employment Opportunity Commission in the waning days of the Obama administration to extend the commission’s interpretation of sex-based harassment to include actions based on gender identity and sexual orientation, Lydia Wheeler reports at the Hill. The unusual move has raised fears among civil rights advocates that it represents another effort by the Trump administration to roll back regulatory protections the previous administration sought to provide to LGBT employees:
The language is at odds with the way Cabinet officials in the Trump administration have viewed and carried out the laws governing discrimination, which can include harassment, when it comes to LGBT people. And that’s why civil rights advocates and a former commissioner fear it won’t be approved. …
What’s unusual, former EEOC Commissioner Jenny Yang said, is that the guidance is under review by the White House Office of Information and Regulatory Affairs (OIRA) and has been since November. Yang, who left the EEOC on Jan. 3, said the proposal is sub-regulatory guidance, which is not typically reviewed by the White House because it’s only an expression of the agency’s policy.
More and more employers in the US are adding fertility benefits to their rewards packages in an effort to attract and retain employees who are interested in starting families. The latest organization to do so is State Street, which has added fertility and more generous adoption assistance to its benefits package in a deliberate effort to be more inclusive of LGBT employees in particular, Amanda Eisenberg reports at Employee Benefit News:
The financial services firm consulted its employees in an effort to make a meaningful expansion to its benefits package, which now includes four weeks of fully paid leave for employees who are primary caregivers to a child born via surrogacy; $20,000 in reimbursement for fertility-related expenses beyond the firm’s medical plans, such as surrogacy; and $20,000 in reimbursement for adoption assistance (up from its previous reimbursement of $5,000). The company says the benefits can be used once per calendar year and employees are allowed up to $40,000 in lifetime financial support for these benefits combined.
State Street is by no means alone in embracing fertility benefits as a talent attractor: A Willis Towers Watson survey conducted in January found that 66 percent of US employers expect to offer these benefits by next year, compared to 55 percent in 2017. These programs are also becoming more inclusive of LGBT employees who are looking to start families: 65 percent of employers who offer fertility benefits currently provide coverage to same-sex couples, but 81 percent are expected to by 2019. Employers told Willis Towers Watson that their main motivations for providing fertility benefits were to support diversity and inclusion, to help attract and retain top talent, to be recognized as a “best place to work,” and to foster a more woman-friendly workplace.
The US Supreme Court denied an appeal in a case concerning whether discriminating against LGBT employees on the basis of their sexuality violates Title VII of the Civil Rights Act, which prohibits sex discrimination, the Hill reported on Monday. Giving no explanation for its decision, the court refused to hear the case of Jameka Evans, a former security guard at Georgia Regional Hospital, who claims she was harassed and forced out of her job because of her sexual orientation and gender-nonconforming appearance.
Evans, represented by attorneys from the LGBT legal advocacy organization Lambda Legal, had taken her case to the 11th Circuit Court of Appeals, but a panel of judges in that court ruled against her in March on the basis of a precedent from 1979. The 11th circuit declined to rehear the case en banc (by the full court), so Lambda Legal petitioned the Supreme Court to resolve it instead. According to the Hill, the organization expressed disappointment in the court’s decision, noting that it leaves unresolved a split decisions among different circuit courts regarding the rights of LGBT Americans in the workplace:
“But this was not a ‘no’ but a ‘not yet,’ and rest assured that Lambda Legal will continue the fight, circuit by circuit as necessary, to establish that the Civil Rights Act prohibits sexual orientation discrimination,” Greg Nevins, the group’s employment fairness project director, said in a statement.
Qantas Group CEO Alan Jones (Jetstar Airways/Flickr
OUTstanding, an organization dedicated to supporting the visibility of LGBT people in corporate leadership, has published its annual Role Models for 2017: a set of rankings listing the top LGBT corporate executives, future corporate leaders, and public sector executives around the world. Their top role model this year is Alan Joyce, CEO of the Australian airline Qantas, who was chosen for his outspoken support for marriage equality rights. Australian voters are currently in the midst of a referendum on whether to legalize same-sex marriage; executives at over 800 Australian corporations (part of over 2,000 organizations in total) have signed an open letter in support of marriage equality, but Joyce has been particularly visible and vocal on the issue, the BBC reports:
“In the past year I’ve worked hard to drive changes in my own workplace and indeed my own country,” Mr Joyce said. As well as speaking up personally on the question of same-sex marriage, Mr Joyce has encouraged other business leaders to join him in campaigning for a “yes” vote in the Australian ballot. He said more than 1,300 firms have put their name to the cause.
Prime Minister Malcolm Turnbull has promised that if a majority of Australians support same-sex marriage in the poll, parliament will debate amending the Marriage Act, which could lead to the country becoming the 25th country to permit same-sex marriage. The ballot will close on 7 November; latest reports indicate that nearly three-quarters of eligible voters have already returned their ballots with nearly two weeks left to go.
Quartz’s Lianna Brinded interviews Lloyds of London CEO Inga Beale, who was number six on the list of role models and says her “own personal experience transformed the way she works and the employees around her—and fostered a working environment that it is fit for a new generation of workers”:
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A group of 76 US companies, including major tech players like Apple, Google, Microsoft, and Viacom, submitted a brief to the Supreme Court asking it to weigh in on whether Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination on the basis of sex, also protects LGBT employees, Reuters reports:
The companies asked the Supreme Court to take up the case of Jameka Evans, a former security guard at a Georgia hospital who says she was harassed and forced to quit her job because she is gay. The companies said the lack of a federal law clearly prohibiting discrimination on the basis of sexual orientation has hindered recruitment in the 27 states that have not adopted their own such laws.
And “the uncertainty and vulnerability LGBT workers face results in diminished employee health, productivity, job engagement, and satisfaction,” wrote the companies’ lawyers at Quinn Emanuel Urquhart & Sullivan.
In March, a three-judge panel from the 11th Circuit Court of Appeals in Atlanta ruled against Evans in an appeal filed on her behalf by the LGBT legal advocacy organization Lambda Legal, dismissing her claim on the basis of a circuit court precedent from 1979. Lambda petitioned the full court to rehear Evans’ case, but it declined to do so in July, so the group took the case to the Supreme Court last month.
Different circuit courts have handed down contradictory opinions on this issue, so the high court is likely to take it up at some point in the near future, as it often does when federal judges split on a question of federal law.