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Walmart’s score suspended in Human Rights Campaign rankings

LGBT group cites findings of reasonable cause of anti-trans discrimination

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Walmart, gay news, Washington Blade
Walmart, gay news, Washington Blade

The Human Rights Campaign suspended Walmart’s score in the Corporate Equaluty Index. (Photo by Mike Mozart of JeepersMedia; courtesy Flickr)

The retail giant Walmart, which has long been the subject of criticism over its employment practices, has found a new critic in the Human Rights Campaign’s latest corporate scorecard.

The nation’s LGBT organization suspended Walmart’s score in the 2018 Corporate Equality Index, which was unveiled last week. The cited reason for the suspension was the U.S. Equal Employment Opportunity Commission, the U.S. agency charged with enforcing federal employment civil rights law, finding probable cause for anti-trans discrimination within Walmart in 2017.

“During the CEI survey cycle, two Equal Employment Opportunity Commission determinations were made public in the cases of Jessica Robison (EEOC Charge Number 511-2015-01402) and Charlene Bost (EEOC Charge Number 430- 2014-01900),” the report says. “These determinations pointed to significant enforcement gaps in Wal-Mart’s non-discrimination policy, specifically with regards to sex and gender identity. Pending remedial steps by the company, the CEI rating is suspended.”

Deena Fidas, director of the Human Rights Campaign’s Workplace Equality Program, said the suspension will be lifted when Walmart addresses EEOC’s findings of anti-trans discrimination.

“When Walmart addresses the determinations by the EEOC, their company policies and practices will be assessed and given a score based on the CEI criteria,” Fidas said.

The suspension stands in contrast to scores Walmart has obtained before. In the 2017 index, the retail giant had a perfect score of “100” for having an LGBT non-discrimination policy, affording same-sex spousal benefits, providing health insurance that includes transition-related care for transgender employees and having an LGBT employee affinity group.

Tara Raddohl, a Walmart spokesperson, said the retailer maintains a positive environment for LGBT employees despite the suspension of its score in the Corporate Equality Index.

“We are proud of our work on LGBT-inclusive and non-discriminatory policies,” Raddohl said. “We’re disappointed with the HRC’s decision to temporarily suspend our score, which was going to be rated at 100 percent for the second year in a row. While we respect the HRC’s work, we are confident in Walmart’s leading practices that support our LGBTQ communities and look forward to further educating them on our policies.”

The EEOC findings cited in the Corporate Equality Index were the result of the two lawsuits filed by the New York-based Transgender Legal Defense & Education Fund. The findings of reasonable cause for discrimination by EEOC means the two cases will now move forward to litigation in federal court.

One lawsuit was filed on behalf of Jessica Robison, an employee in Florida of Sam’s Club, which is owned by Walmart. Although she was rewarded with several promotions, a supervisor allegedly subjected her to harassment and intimidation in 2014 after she began her gender transition. After filing a complaint, Robison was disciplined and demoted.

In July, EEOC ruled in Robison’s favor, finding “there is reasonable cause” to believe Sam’s Club discriminated against Robison “due to her transgender status/gender identity” and retaliated against her.

The other lawsuit was filed on behalf of Charlene Bost, who allegedly faced employment discrimination as a member service supervisor at a Sam’s Club store in Kannapolis, N.C., in her position.

In Auguest, the EEOC found reasonable cause to believe Bost was subjected to unlawful discrimination and a hostile work environment because of being transgender for several years until her retaliatory firing in 2015.

Jillian Weiss, executive director of the Transgender Legal Defense & Education Fund, said in a statement the suspension of Walmart’s score in the Corporate Equality Index was a positive step.

“Seven hundred fifty major companies have strong corporate policies protecting transgender people, backed up by proper enforcement procedures,” Weiss said. “We hope this will deliver the message to Walmart and others that good corporate policy is not enough. It must be accompanied by strong enforcement mechanisms, or it is mere window dressing. TLDEF will continue to bring suits on behalf of transgender people who experience discrimination in employment, education, health care access and public accommodations.”

The Human Rights Campaign has long faced criticism from progressive voices for giving Walmart high scores in the Corporate Equality Index. Most of the criticism has focused on employment practices at large in Walmart, which has been accused of thwarting efforts by employees to unionize.

The Human Rights Campaign also faced criticism for refusing to dock Walmart points in 2016 amid a class-action lawsuit filed by GLBTQ Advocates & Defenders alleging the company refused to provide same-sex spousal benefits promised to employees. The lawsuit was settled in December for $7.5 million for all employees who were affected.

Jerame Davis, executive director of Pride at Work, said in a statement the Human Rights Campaign “deserves credit” for suspending Walmart’s score in 2017, but added the LGBT group waited too long to take action.

“In the last CEI, Walmart received a perfect score despite the fact that the company had just settled a class action lawsuit brought by LGBTQ people who had been denied spousal benefits,” Davis said. “In light of this development, it is our sincere hope that HRC will take the necessary steps to ensure the CEI is an accurate measure of a corporation’s commitment to LGBTQ equality. Until the CEI includes a mechanism to ensure these policies are followed and enforced, it is impossible to consider these scores as anything other than aspirational.”

The suspension of Walmart’s score stands in contrast to the record number of high scores in the Corporate Equality Index won by other companies. According to the Human Rights Campaign, a record-breaking 609 businesses earned the top score of “100.” That’s up from 517 from last year and represents a single-year increase of 18 percent.

Chad Griffin, president of the Human Rights Campaign, said in a statement “top American companies are driving progress toward equality in the workplace” as the Trump administration undermines LGBT rights.

“The top-scoring companies on this year’s CEI are not only establishing policies that affirm and include employees here in the United States, they are applying these policies to their operations around the globe and impacting millions of people beyond our shores,” Griffin said. “In addition, many of these companies have also become vocal advocates for equality in the public square, including the dozens that have signed on to amicus briefs in vital Supreme Court cases and the 106 corporate supporters of the Equality Act. We are proud to have developed so many strong partnerships with corporate allies who see LGBTQ equality as a crucial issue for our country and for their businesses.”

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Anti-LGBTQ Colorado baker loses Trans birthday cake court case

Phillips violated Colorado’s ant-discrimination law citing the fact that at issue was a ‘product’ not freedom of speech or expression

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Jack Phillips (Washington Blade file photo by Michael Key)

DENVER – A Colorado State District Court Judge ruled against the baker who had previously refused to bake a cake for a same-sex wedding and won at the U.S. Supreme Court a partial narrow victory in that case in 2018.

CBSN Denver reported that Denver District Judge A. Bruce Jones order that Jack Phillips violated Colorado’s anti discrimination law Tuesday citing the fact that at issue was a ‘product’ not freedom of speech or expression.

In court documents, Jones said that Phillips refusal to make the plantiff, Autumn Scardina a cake made with blue icing on the outside and pink on the inside to celebrate her gender transition on her birthday because of her transgender status but without a written message, was in violation of the law. Phillips was ordered to pay a $500 fine.

Jones noted in his ruling that Phillips testified during a trial in March that ‘he did not think someone could change their gender’ and he would not celebrate “somebody who thinks that they can.”

“The anti-discrimination laws are intended to ensure that members of our society who have historically been treated unfairly, who have been deprived of even the every-day right to access businesses to buy products, are no longer treated as ‘others,‘” the judge wrote.

The Scottsdale, Arizona based Alliance Defending Freedom, an anti-LGBTQ legal group that has been place on the Southern Poverty Law Center’s Hate Watch List for spreading propaganda and lies about LGBTQ people, told CBSN that the group would appeal Jones’ ruling.

“Radical activists and government officials are targeting artists like Jack because they won’t promote messages on marriage and sexuality that violate their core convictions,” ADF’s general counsel, Kristen Waggoner, said in a media statement.

The maximum fine for each violation of Colorado’s Anti-Discrimination Act is $500. But it was not clear from the ruling if the fine was for the two attempts that Scardina made to order the cake or just one.

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Supreme Court rules for religious agency seeking to reject LGBTQ families

Unanimous decision bottled up to context of city contract

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The U.S. Supreme Court ruled on Thursday in favor of a religious-affiliated foster care agency seeking to refuse child placement into LGBTQ homes, issuing a decision with limited reach that determined the City of Philadelphia’s enforcement of a contract with non-discrimination provisions violates freedom of religion under the First Amendment.

In a surprise twist, the ruling was unanimous with nine justices on the court agreeing to the result in favor of Catholic Social Services, with Chief Justice John Roberts writing the opinion. As noted by SCOTUSblog, the court seemed much more divided in oral arguments, although inclined to rule for the foster care agency.

“The refusal of Philadelphia to contract with CSS for the provision of foster care services unless the agency agrees to certify same-sex couples as foster parents cannot survive strict scrutiny and violates the Free Exercise Clause of the First Amendment,” Roberts writes.

Although Catholic Social Services had also contended a freedom of speech right under the First Amendment to reject same-sex couples, Roberts adds the court didn’t reach a conclusion on that part of the argument.

Becket Law, which had argued in case on behalf of Catholic Social Services, crowed in a statement over its win at the Supreme Court.

“It’s a beautiful day when the highest court in the land protects foster moms and the 200-year-old religious ministry that supports them,” said Lori Windham, senior counsel at Becket. “Taking care of children, especially children who have been neglected and abused is a universal value that spans all ideological divides.

A key portion of the Roberts decision that could limit its reach is language specific to Philadelphia’s contract with the city allowing for discretion on enforcement, which he says means the measure isn’t generally applicable measure.

“Section 3.21 of the contract requires an agency to provide services defined in the contract to prospective foster parents without regard to their sexual orientation,” Roberts writes. “But section 3.21 also permits exceptions to this requirement at the ‘sole discretion’ of the Commissioner. This inclusion of a mechanism for entirely discretionary exceptions renders the non-discrimination provision not generally applicable.”

The American Civil Liberties Union, which had argued before the Supreme Court in the case and sided with the City of Philadelphia, claimed a small victory after the decision.

“The decision will not affect any foster care programs that do not have the same system for individualized exemptions that were at issue here,” Leslie Cooper, deputy director of the ACLU LGBTQ & HIV Project, said in a statement. “This is good news for the more than 400,000 children in foster care across the country, who are the ones who get hurt the most if placement decisions are made based on an agency’s religious beliefs rather than the child’s best interest. And this decision does not allow discrimination in other taxpayer-funded government programs such as homeless shelters, disaster relief programs and health care.”

Marianne Duddy-Burke, executive director of the LGBTQ Catholic group DignityUSA, initially issued a statement saying the decision opened the door to discrimination against LGBTQ families, but subsequently updated it with a reaction more attune to the decision’s language.

“While we are disappointed in the specifics of today’s ruling, we are relieved that the court did not allow a broad exemption to nondiscrimination provisions in foster and adoption care,” Duddy-Burke said. “It remains deeply problematic that some religiously affiliated agencies continue to seek the ability to ban same-sex couples from opening their hearts and homes to children in need and undermine our hopes for expanding our families. The biases that lie at the heart of this case need to be eradicated.”

David Flugman, a lawyer at the New York-based Selendy & Gay PLLC whose practice includes LGBTQ rights, said in a statement the technical nature of the Fulton is “sure to invite even more litigation.

“Today the Supreme Court held, on narrow, technical grounds, that the City of Philadelphia’s attempt to ensure that Catholic Charities abide by the same non-discrimination provisions applicable to all other city contractors could not withstand Catholic Charities’ religious right to refuse to screen loving same-sex couples to act as foster parents,” Flugman writes. “The Court did not take up Catholic Charities’ invitation to scuttle the 30 year-old test for free exercise claims that was announced in Smith v. Employment Division, which held that a neutral law of general applicability could survive even if it burdens religious practice.”

The Supreme Court reversed and remanded decision of the U.S. Third Circuit of Court of Appeals, which had ruled in favor of City of Philadelphia enforcing its contract with Catholic Social Services. Both the appeals courts and the lower trial court had come to the opposite conclusion of the U.S. Supreme Court.

Notably, although the City of Philadelphia in addition to the contract it struck with Catholic Social Services has in a place LGBTQ non-discrimination ordinance, the Supreme Court determines that measure doesn’t apply in the context of foster care services because it’s limited to the services “made available to the public.”

“Certification is not ‘made available to the public’ in the usual sense of the words,” Roberts writes. “Certification as a foster parent is not readily accessible to the public; the process involves a customized and selective assessment that bears little resemblance to staying in a hotel, eating at a restaurant, or riding a bus.”

Fatima Goss Graves, CEO of the National Women’s Law Center, said in a statement the decision from the Supreme Court is a harmful loss to the children in the foster care system in Philadelphia as well as the countless LGBTQ parents.”

“Weakening the government’s ability to protect their civil rights is hardly in their best interest, and we’re committed to ensuring this loophole is not stretched to further justify hatred or prejudice,” Graves added. “We must protect the right of every person to live without fear of discrimination because of who they are or who they love, and we must hold that value particularly close when it comes to the best interest of LGBTQ youth and the families who love them.” 

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U.S. Senate to consider apology for past anti-LGBTQ discrimination

Report shows 70-year history of gov’t persecution, purges of ‘sex deviates’

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Pioneering activist Frank Kameny, who was fired from his government job for being gay, received an apology from the government decades later, but that apology did not extend to the thousands of other LGBT Americans persecuted by their government. (Blade file photo by Michael Key)

U.S. Sens. Tammy Baldwin (D-Wisc.) and Tim Kaine (D-Va.) are preparing to introduce a first-ever resolution calling on the Senate to acknowledge and apologize for the federal government’s discrimination against LGBTQ federal workers and members of the military over a period of at least 70 years.

The two senators have agreed to introduce the proposed resolution at the request of the Mattachine Society of Washington, D.C., an LGBTQ group that specializes in archival research into the federal government’s decades-long policy of banning LGBTQ people from working in federal jobs and serving in the U.S. military and purging them when found to be in those positions.

The Mattachine Society, in partnership with the international law firm McDermott Will & Emery, prepared a 28-page white paper reporting in extensive detail the U.S. government’s history of what it calls discrimination and persecution of LGBTQ federal workers and LGBTQ military service members.
The white paper is entitled, “America’s Promise of Reconciliation and Redemption: The Need for an Official Acknowledgement and Apology for the Historic Government Assault on LGBT Federal Employees and Military Personnel.”

In a statement, the Mattachine Society says the paper is the product of a two-year research project involving a team of five attorneys with the McDermott Will & Emery firm and Mattachine Society.

“Over many decades, the United States government, led by teams within the Federal Bureau of Investigation (FBI), the Office of Personnel Management (OPM), and nearly every agency and branch of government, began the process of investigating, harassing, interrogating, court-martialing, terminating, hospitalizing, and, in some cases, criminally prosecuting LGBT Americans for no other reason than their sexual orientation or gender expression,” the paper says.

“This wholesale purging left tens of thousands in financial ruin, without jobs, with personal lives destroyed, and, in many cases, completely estranged from their own families,” the paper states.

“A straightforward acknowledgement of the mistreatment of these military and civilian employees and an official apology is overdue,” the paper continues. “Both the Congress and the Executive Branch were complicit in this pervasive mistreatment of LGBT citizens.”

The paper points out that over the past 30 years Congress has officially acknowledged and apologized on six different occasions for U.S. mistreatment of other marginalized groups.

Among the subject areas of those apologies were the enslavement of African Americans, the failure to enforce anti-lynching laws to protect African Americans, the internment of Japanese Americans during World War II, the mistreatment of Native Hawaiians, the mistreatment of Native Americans, and government polices of exclusion of Chinese immigrants.

The paper says the time has come for the federal government to issue its own “acknowledgement and apology” to the LGBT community by following the precedent established by Congress with respect to apologies to the other marginalized groups.

Jeff Trammell, a Mattachine Society board member who led the project to prepare the white paper, said Baldwin and Kaine were in the process of lining up other senators to sign on as co-sponsors of the resolution.

Baldwin is the Senate’s only out lesbian member. Kaine is a longtime supporter of LGBTQ rights.
Trammell said Mattachine of Washington considers the Senate resolution the first step in an ongoing effort to obtain a similar resolution in the U.S. House of Representatives and a possible similar statement of acknowledgement and apology from the executive branch, including the Biden administration.

He said he and the resolution’s supporters were hopeful that most senators, including Republicans, would view it as non-controversial and as a nonpartisan measure because it seeks only the acknowledgement of historical facts. Trammell noted that unlike other resolutions of apology pertaining to other minorities approved by Congress in the past, the LGBT apology resolution does not call for any financial reparations.

The eight-page proposed resolution addresses that question by stating, “Nothing in this resolution…authorizes or supports any claim against the United States or serves as a settlement of any claim against the United States.”

Trammell noted that under the Obama administration, John Berry, the director of the U.S. Office of Personnel Management, issued an official government apology for the firing of D.C. gay rights pioneer Frank Kameny from his government job in the late 1950s. But Trammell said the apology to Kameny, which was considered important and groundbreaking, did not extend to the thousands of other LGBTQ employees fired or harassed in the years before and after Kameny’s firing.

The white paper also points out that at least seven U.S. allied nations have issued apologies for past mistreatment of their own LGBTQ citizens. Among them are Spain, Canada, United Kingdom, Australia, Germany, Brazil, and The Netherlands.

“We believe the time has come to understand and acknowledge the historical animus that LGBT federal employees and military personnel faced for generations from their own government to ensure it can never happen again,” Trammell said.

The white paper can be accessed here.

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