2015 was certainly a big year for the lesbian, gay, bisexual, transgender, and queer (LGBTQ) community. Caitlyn Jenner dominated the media and brought attention to the transgender community. The U.S. Supreme Court issued its landmark decision on marriage equality, extending marriage rights to same-sex couples nationwide, in Obergefell v. Hodges. President Obama became the first president to mention the word “transgender” in the State of the Union address, and the White House made a gender-neutral restroom available for the first time.
But how do these issues play out in the legal world? The answer to that question is not exactly cut and dry. Because congress has not passed federal legislation banning discrimination in employment based on sexual orientation and/or gender identity, States are free to enforce their own anti-discrimination statutes (or abstain) in this realm. North Carolina passed HB-2, which eliminated anti-discrimination measures for LGBTQ people and required transgender individuals to use bathrooms in state facilities that correspond to the gender assigned to them at birth. Along with Tennessee and Arkansas, North Carolina also banned municipalities from passing anti-discrimination measures.
Other states, however, have begun to instill anti-discrimination measures for the LGBTQ community. Indeed, twenty-one states and the District of Columbia (see below) offer protections based on sexual orientation and/or gender identity.
District of Columbia
Due to this mix of laws and politics, employers are left wondering what to do. Employers are increasingly being pressured to provide protections for their LGBTQ employees. A recent national annual survey of in-house counsel, human resources professionals, and C-level executives found that almost three-quarters of respondents cited an increased number of discrimination claims by LGBTQ people as one of their chief concerns for the coming year. That represents a substantial increase from the 31 percent of respondents who cited the same concern in 2015. This concern may be animated in part by the Equal Employment Opportunity Commission (EEOC) being more aggressive in bringing LGBTQ-related actions against employers.
The EEOC is charged with enforcing Title VII of the Civil Rights Act of 1964 (Title VII). Title VII prohibits employment discrimination on the basis of “race, color, religion, sex, and national origin.” In July 2015, the EEOC announced for the first time that it considered sexual orientation discrimination to be covered by Title VII’s prohibition against sex discrimination in Baldwin v. Foxx. In that case, an air traffic control specialist filed an EEOC complaint against the Federal Aviation Administration (FAA). The specialist, a gay male, claimed that he was not selected for a permanent position because of his sexual orientation. He claimed that he was told that discussions about his male partner were “a distraction” and that his colleagues did not need to “hear about that gay stuff.”
The EEOC decided that sexual orientation discrimination is covered under sex discrimination because (1) “sexual orientation is premised on sex-based preferences, assumptions, expectations, stereotypes, or norms”; (2) sexual orientation “cannot be defined or understood without reference to sex”; and (3) sexual orientation discrimination arises out of animus toward employees as a result of their associational relationships with others of the same sex. The EEOC stressed that it was not creating a new class of claims but instead highlighting that allegations of sexual orientation discrimination, by their very nature, “necessarily state a claim of discrimination on the basis of sex.”
In a 2012 EEOC decision, Macy v. Holder, the EEOC followed the lead of a number of federal courts in upholding transgender rights under Title VII. The EEOC held that “because the term ‘gender’ encompasses not only a person’s biological sex but also the cultural and social aspects associated with masculinity and femininity,” a transgender employee “may establish a prima facie case of sex discrimination” under Title VII.
On March 1, 2016, the EEOC filed its first two cases based on its theory that sexual orientation discrimination is prohibited under Title VII. In EEOC v. Scott Medical Health Center, the EEOC claimed that the plaintiff, a gay male, was subjected to a wide variety of unwelcome comments about his sexual orientation, including “queer,” “fag,” and “faggot,” three to four times per week. It was also alleged that the plaintiff’s supervisor inquired about the plaintiff’s sex life and the normative gender roles that each partner played in the relationship. The EEOC alleged that the defendant refused to take action when the plaintiff brought the issues to the attention of management and that they thus created a hostile work environment for the plaintiff.
In the other case filed in March, EEOC v. IFCO Systems, the EEOC alleged that a lesbian employee had been unlawfully discriminated against, was subjected to harassment, and was retaliated against for complaining about the harassment. The employee began working the night shift soon after beginning her job with IFCO Systems. Her night shift manager allegedly harassed her on a weekly basis, stating that he would like to change her sexual orientation, telling her she did not have breasts, and stating that he wanted to turn her “back into a woman.” He also quoted bible passages to her, which he claimed were opposed to her identity, and he touched his genitals while speaking to her.
On July 6, 2016, the EEOC sued Bojangles Restaurants on behalf of a transgender woman who was allegedly subjected to derogatory comments about her gender identity and appearance. The woman was asked to engage in stereotypically male behaviors and grooming practices even though she clearly identified as female to her supervisors. When the comments continued, she complained and was subsequently terminated.
On July 18, 2016, the EEOC sued Rent-A-Center East on behalf of another transgender woman who was allegedly terminated because of her gender identity. The woman identified and presented as male when she was first employed with the company but informed her supervisors that she was in the midst of a gender transition. The EEOC alleges that the employer manufactured a pretext for terminating her but that the ultimate reason for her dismissal was her gender transition.
Accessing gender neutral bathrooms has also been a hot topic in litigation and the media following North Carolina’s bill restricting such use. The EEOC held in Lusardi v. Department of the Army that Title VII requires employers to provide transgender individuals with equal access to a common restroom that matches their gender identity. Furthermore, employers cannot fulfill this obligation by providing a single-use restroom stall specifically for transgender employees because it would deny the individual access to resources available to others, segregate the individual from other persons with the same gender identity, and lead the individual to feel unequal and disrespected.
So what does all of this mean for employers? It means that the state of anti-discrimination laws for the LGBTQ community is up in the air. While the EEOC is strongly committed to the idea that Title VII provides protection against sexual orientation discrimination, the federal courts are not in complete agreement. Considering the fact that the EEOC has demonstrated its commitment to bringing prominent lawsuits against sexual orientation and gender identity discrimination, employers may want to consider taking precautionary measures, such as:
- Providing transgender employees access to a common restroom that matches his or her own gender identity. Employers should not ask for proof of any surgical or other medical procedure to confirm the employee’s presented identity;
- Developing and maintaining policies and procedures that prohibit consideration of sexual orientation and gender identity in hiring, promotion, and retention;
- Modifying orientation programs, training sessions, and employee handbooks to clarify that anti-harassment measures apply to LGBTQ employees;
- Ensuring that benefit programs are available in equal measure to all employees, regardless of sexual orientation or gender identity, and allow transgender employees to use benefit programs and leave policies for any transition-related medical needs; and
- Maintaining an open door to hear about employees’ concerns, and ensure that there is a meaningful process through which to discuss and address such concerns.