Years before the Supreme Court’s 2015 decision in Obergefell v. Hodges, which announced that same-sex couples had the right to marry in all states, the U.S. Equal Employment Opportunity Commission (EEOC) and various states had already protected lesbian, gay, bisexual and transgender (LGBT) employees in the workplace. Keep reading to learn what these developments mean for your workplace and for best practices on how to keep your company discrimination free.
Are LGBT employees protected from workplace harassment and discrimination? Yes.
Federal Executive Order and EEOC Interpretation
In 2014, President Barack Obama signed an Executive Order adding sexual orientation and gender identity to the list of protected categories covering federal contractors. Although LGBT workers are not explicitly protected under federal statute, the EEOC's 2012 Strategic Enforcement Plan includes "coverage of lesbian, gay, bisexual and transgender individuals under Title VII's sex discrimination provisions” as part of the agency’s enforcement priority for 2013-2016. This EEOC interpretation is consistent with its positions in recent years regarding the intersection of LGBT-related discrimination and Title VII's prohibition on sex discrimination.
LGBT Charges Filed with EEOC
The EEOC is accepting and investigating charges from individuals who believe they have been discriminated against because of their LGBT status. From January through September, 2013, EEOC received 643 charges that included allegations of sex discrimination related to sexual orientation and 147 charges that included allegations of sex discrimination based on gender identity/transgender status.
In 2014, the EEOC received 918 charges that included allegations of sex discrimination related to sexual orientation and 202 charges based on gender identity/transgender status. For the first two-quarters of FY 2015, EEOC received 505 charges that included allegations of sex discrimination related to sexual orientation and 112 charges based on gender identity/transgender status.
EEOC’s Litigation of LGBT Cases
EEOC v. Lakeland Eye Clinic, P.A.
The EEOC has sued a health care provider in Florida for sex discrimination, alleging that it unlawfully firing an employee because she is transgender, transitioning from male to female, and/or did not conform to the employer's gender-based expectations, preferences, or stereotypes. According to the EEOC's lawsuit, the employee had performed her duties satisfactorily throughout her employment. However, after she began to present as a woman and informed the clinic she was transgender, the employer fired her.
EEOC v. R.G. & G.R. Harris Funeral Homes Inc.
The EEOC has sued a Detroit funeral home for sex discrimination alleging that it unlawfully fired a funeral director/embalmer because she is transgender, transitioning from male to female, and/or did not conform to the employer's gender-based expectations, preferences, or stereotypes. According to the EEOC's lawsuit, when the employee gave her supervisor a letter explaining she was undergoing a gender transition from male to female, and would soon start to dress consistent with her gender identity, the owner fired her.
EEOC v. Boh Bros. Constr. Co. LLC.
The EEOC won a jury verdict in and the Fifth Circuit affirmed in this Title VII enforcement action that a plaintiff alleging same-sex harassment by his supervisor in an all-male crew can show that the harassment occurred because it was motivated by the harasser's subjective perception that the victim failed to conform to gender stereotypes as being "not manly enough."
State Laws and Executive Orders
Nineteen states, the District of Columbia, and Puerto Rico have enacted statutes that protect against both sexual orientation and gender identity discrimination in employment in the public and private sectors: California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, Nevada, New Jersey, New Mexico, Oregon, Rhode Island, Utah, Vermont, and Washington.
Six states have an executive order, administrative order, or personnel regulation prohibiting discrimination in public employment based on sexual orientation and gender identity only: Indiana, Kentucky, Michigan, Pennsylvania, and Virginia. New York prohibits discrimination based on gender identity in public employment only.
States that ban sexual orientation discrimination in employment by statute include California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, Nevada, New Hampshire, New Jersey, New Mexico, New York, Oregon, Rhode Island, Utah, Vermont, Washington, and Wisconsin. Five states have executive orders prohibiting discrimination in public employment based on sexual orientation only: Alaska, Arizona, Missouri, Montana, and Ohio.
Best Practices for Maintaining an LGBT-Inclusive and Bias-Free Workplace
1. Conduct management training.
Train your managers and employees to understand that all forms of diversity are welcome, including employees. Especially when it comes to sex stereotyping in the workplace, it’s important to remind employees to be inclusive and harassment-free.
2. Reinforce consistent messaging about legal compliance and respectful workplace conduct.
Ensure employees understand that discrimination and harassment based on LGBT status is a form of sex discrimination and is not acceptable in the workplace. Any negative comments based on an employee’s LGBT status are unproductive, offensive, and can lead to lawsuits or complaints. Harassers can be personally liable.
3. Ensure that managers focus on legitimate business needs and objective employment criteria.
Managers should be admonished to focus employment decisions on legitimate business needs as well as employee qualifications, experience, and objective performance measures, the LGBT status of the employee or applicant should play no part in making employment decisions.
When it comes to LGBT discrimination in the workplace, communicate to your team that any discrimination or harassment based on LGBT status is unacceptable. Focus on effective training, consistent messaging, and unbiased decision-making to keep your organization positive and inclusive.
Phyllis is an employment law expert and a partner at DLA Piper, the largest global law firm. Before joining DLA Piper, Phyllis was the Director of the California Department of Fair Employment and Housing, the largest state civil rights agency in the United States. During her nearly seven-year tenure at DFEH, the agency took in 140,000 complaints and prosecuted between 400-500 cases, including several class complaints.
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