- Written by Carl Larson
Gender identity discrimination in employment may soon become unlawful, or at least that is what the ten states moving to block an Obama directive think. President Obama issued a directive recently which changes the interpretation of sex discrimination to also include gender identity discrimination. Currently, the directive only applies to the educational sector through Title IX, an anti-discrimination law governing most schools and colleges. Although the directive is supposedly aimed at protecting transgender students, as written the directive also applies to school employees. Employers are concerned that this may be a road map for changes which may soon apply to Title VII which governs private employers. The ten states’ suit in Nebraska is accompanied by 13 other states currently suing to block the same directive in a Texas federal court.
With the exception of federal contractors and subcontractors, existing Federal law does not explicitly protect private sector employees from discrimination based on gender identity. However, the Equal Employment Opportunity Commission (“EEOC”), the federal agency tasked with enforcing federal anti-discrimination laws, has taken an increasingly aggressive stance to protect transgender employees from discrimination. Because there is no explicit protection for gender identity, the EEOC has had to rely on cases which recognize that sex discrimination can occur based on non-conformance with sex stereotypes. That is to say, those cases have held that it is unlawful to discriminate against an employee because their actions or appearance do not match those that are typically associated with being male or female. In other words, employers cannot terminate male employees for being too effeminate or women for being too masculine.
- Written by Anthony Oceguera
Last year, Congress passed the Federal Civil Penalties Inflation Adjustment Act Improvement Act of 2015, directing Federal agencies to adjust their civil monetary penalties for inflation every year. Additionally, the law directed agencies to determine the last time their penalties were increased and to issue interim final rules adjusting their penalties for inflation from that date. These so called “catch up” increases were capped at 150 percent of the existing penalty amount.
On June 30, 2016, the Department of Labor issued two new rules adjusting their various civil penalties. As a result, OSHA penalties will increase by approximately 78 percent. The maximum penalty for serious violations will increase from $7,000 to $12,471, and the maximum penalty for willful or repeated violations will rise from $70,000 to $124,709.
Similarly, Wage and Hour Division penalties for willful violations of the Fair Labor Standards Act minimum wage and overtime provisions will increase by more than 70 percent. The maximum penalty for these violations will increase from $1,100 to $1,894 per employee for willful or repeated violations.