Bench & Bar

JAN 2014

The Bench & Bar magazine is published to provide members of the KBA with information that will increase their knowledge of the law, improve the practice of law, and assist in improving the quality of legal services for the citizenry.

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FEATURE: LGBT Employees and applicants who are members of the LGBT community have found some protection, depending on the underlying facts and circumstances, pursuant to the general proscription of discrimination based on sex. The case law requires a showing that the decision maker considered sex in issuing an adverse employment action.33 Employers should expect continued evolution of the law in this area, particularly if Title VII or the Kentucky Civil Rights Act is not amended to include sexual orientation and gender identity as protected bases. LEGISLATION ON THE HORIZON As indicated earlier, bills to amend the Kentucky Civil Rights Act to add sexual orientation and gender identity to the list of protected bases have been introduced.34 During the 2013 regular session of the Kentucky General Assembly, these bills died in committee. The prospect of such a bill being passed at the state level currently appears remote. At the federal level, effort is underway to pass the Employment NonDiscrimination Act of 2013 ("ENDA"), which would ban employment discrimination on the basis of sexual orientation and gender identity.35 On Nov. 7, 2013, the Senate passed its version of ENDA by a vote of 64 to 32.36 The companion bill in the House, H.R. 1755, has seen little traction and faces a "steep uphill climb" to passage.37 Sadhna True is a partner in Dinsmore & Shohl's Labor and Employment Department. She represents employers in employment litigation and provides advice and counsel on all aspects of the employer-employee relationship and labor-management relations. In addition, True has significant experience in commercial litigation, diversity counseling, government contracts and government investigations. She has counseled numerous clients on a wide variety of civil rights issues, including educational institutions on compliance with Title IX (prohibiting discrimination based on sex in education), and public and private entities on accessibility to facilities for persons with disabilities. She served as the director of Civil Rights for the United States Department of Agriculture, and as a trial attorney for the United States Department of Justice, Civil Division, Commercial Litigation Branch, Civil Frauds Section.  She earned her J.D. from the University of Michigan Law School. Louisville/Jefferson County, Ky., Code § 92.01. Louisville and Jefferson County each passed fairness ordinances in 1999, prior to the merger of the two governments in 2002. The Louisville/Jefferson Metro Government adopted the current version of the jurisdiction's Fairness Ordinance on December 10, 2004. 2 The Lexington-Fayette Urban County Government passed Local Ordinance 201-99, more commonly known as the Fairness Ordinance, on July 8, 1999. Urban County Gov't of Lexington-Fayette County, Ky., Charter & Code of OrdiCONCLUSION nances § 2-33. 3 Covington, Ky., Code of Ordinances § 37.01. The City of Covington passed the Employers should address instances of harassment, bullying, Fairness Ordinance on April 29, 2003. 4 threats, ridicule and similar behaviors in the workplace. Moreover, City of Frankfort, Ky., Code of Ordinances § 96.01. Significantly, Frankfort's fairness ordinance, passed on Aug. 29, 2013, extended the prohibitions on disemployers should be hesitant to assume that they have no liability crimination in the local Code of Ordinances to public accommodations and to an employee or applicant who is a member of the LGBT comemployers with eight or more employees. Previously, the city had only a Fair munity and who is subjected to an adverse employment action or Housing ordinance. 5 hostile work environment. As illustrated by the cases discussed City of Morehead, Ky., Code of Ordinances § _____. The Morehead City Council passed the Fairness Ordinance on Dec. 9, 2013. above, the demarcation between discrimination based on sex and 6 Karla Ward, Debate is heated on proposed ordinance - Berea considers law on based on sexual orientation or gender identity is fluid. In jurisdicsexual, gender discrimination, The Lexington Herald-Leader, May 11, 2011, at tions with fairness ordinances and for governmental employers, A3. 7 See S.B. 28, 2013 Leg., Reg. Sess. (Ky. 2013); H.B. 171, 2013 Leg., Reg. Sess. discrimination based on sexual orientation or gender identity is ex(Ky. 2013). Both bills proposed amendments to the Kentucky Civil Rights Act, plicitly prohibited. Ky. Rev. Stat. chap. 344, to include protections against discrimination based on sexual orientation and gender identity. Neither bill made it out of committee. 8 Ky. Rev. Stat. §§ 344.230(3)(h), 344.320, when read together, allow a local Human Rights Commission to award "[p]ayment to the complainant of damages for injury caused by an unlawful practice including compensation for humiliation and embarrassment, . . . and for other costs actually incurred by the complainant as a direct result of an unlawful practice." A local government, however, lacks authority to create a private right of action, and the complainant's remedy is limited to that awarded by the Human Rights Commission. See, e.g., Roberson v. Brightpoint Servs., LLC, No. 3:07CV-501-S, 2008 U.S. Dist. LEXIS 23020, at *6 (W.D. Ky. Mar. 24, 2008) ("this court finds no language within the KCRA, authorizing [Louisville] Metro Government Organization Formation to create a private right of action in a court of law for Organizational Policies & Procedures violations of the [Fairness] Ordinance."). 9 Assessment of Operations 523 U.S. 75 (1998). 10 Id. at 80-81. Continuous Improvement Systems (Quality) 11 Id. at 79. Board Governance Issues 12 Id. at 81. 13 See Vickers v. Fairfield Med. Ctr., 453 F.3d 757, Complex Tax Matters 763-65 (6th Cir. 2006) (recognizing that a claim of sexFor-Profit Subsidiaries and Joint Ventures ual harassment could arise from bias based on gender non-conformity). The court, however, concluded that Merger, Consolidation or Dissolution of Nonprofits Mr. Vickers' claim did not fit within that theory. Rather, Mr. Vickers alleged harassment based on his co-workers' belief that he was gay, rather than harassment Conley Salyer, Attorney, J.D., LL.M.; Examiner, Malcolm Baldrige National Quality based on "gender non-conformance [] demonstrable Award (MBNQA). csalyer@nonprofitattorney.net, (859) 281-1171, through the plaintiff's appearance or behavior." Id. at 763. 710 E. Main Street, Lexington, KY 40502. www.nonprofitattorney.net 1 Nonprofit Organization Law Can Be Complex My Practice Is Limited to Advising Nonprofits and The Professionals Working With Them 18 Assistance Provided With This is an advertisement. B&B; • 1.14

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