Sherman & Howard LLC
USA
July 9 2012
The longer that Congress fails to amend Title VII of the 1964 Civil Rights Act, to prohibit employment discrimination based on sexual orientation, the greater the propensity of courts to find that other existing federal and state laws ban such discrimination. For instance, in Stroder v. Comm. of Ky. Cabinet for Health & Family Srvcs[1]., a federal court recently ruled that a law enacted in the aftermath of the Civil War[2] provides a sufficient basis for a sexual orientation discrimination claim by a discharged public employee, and ruled in favor of the plaintiff after a trial.
Section 1983 prohibits government entities from depriving any U.S. citizen of "rights, privileges, or immunities secured by the Constitution and laws." One such "right" is equal protection. In the context of government employment (Section 1983 does not apply to non-governmental employers), this means that the disparate treatment of employees may give rise to Section 1983 liability. Under the law, different levels of deference are given to employers' disparate treatment of employees, based on the specific discrimination involved. "Strict scrutiny" is the highest level of review, an extremely difficult standard for an employer to satisfy, and applies to decisions based on race, for instance. The lowest level of review used by the courts, however, is "rational basis" review - if an employer's basis for treating employees differently is merely "rational," the employer's unequal treatment of employees survives under Section 1983.
Section 1983 prohibits government entities from depriving any U.S. citizen of "rights, privileges, or immunities secured by the Constitution and laws." One such "right" is equal protection. In the context of government employment (Section 1983 does not apply to non-governmental employers), this means that the disparate treatment of employees may give rise to Section 1983 liability. Under the law, different levels of deference are given to employers' disparate treatment of employees, based on the specific discrimination involved. "Strict scrutiny" is the highest level of review, an extremely difficult standard for an employer to satisfy, and applies to decisions based on race, for instance. The lowest level of review used by the courts, however, is "rational basis" review - if an employer's basis for treating employees differently is merely "rational," the employer's unequal treatment of employees survives under Section 1983.
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