Everywhere you look lately, LGBT issues are making headlines. And though a number of federal agencies and federal courts have recently spoken on the issue of discrimination against individuals based on gender identity and/or sexual orientation, considerable uncertainty still exists.
On the state level, some states have passed state laws prohibiting discrimination on the basis of both sexual orientation and gender identity (including Utah and Nevada), some have passed laws only protecting sexual orientation, and some states have not passed any such laws (including Idaho).
On the local level, many cities and counties (including in Utah, Idaho, and Nevada) have enacted local ordinances prohibiting sexual orientation and gender identity discrimination in employment to citizens within their boundaries.
There is also uncertainty because no universally applicable federal law expressly prohibits discrimination in the workplace based on sexual orientation and gender identity. Title VII (which applies to all employers with 15 or more employees) prohibits discrimination based on “sex.” Recently, a number of courts have found that sex includes sexual orientation and/or gender identity.
In December 2012, the U.S. Equal Employment Opportunity Commission (“EEOC”), the agency tasked with enforcing Title VII, approved its Strategic Enforcement Plan for Fiscal Years 2013-2016. The EEOC has taken the position that these categories of individuals are protected by Title VII, stating:
See http://www.eeoc.gov/eeoc/newsroom/wysk/enforcement_protections_lgbt_workers.cfm.
Consistent with this statement, the EEOC has sued a number of employers who are alleged to have discriminated against gay or transgender employees. For example, this past June, the EEOC sued a check-printing and financial services company in Minnesota, alleging that it violated the law by subjecting a transgender employee to sex discrimination. The EEOC has filed several lawsuits alleging discrimination on the basis of gender identity, transitioning, and transgender status. In April 2015, a Florida eye clinic paid $150,000 to settle an EEOC lawsuit filed in September 2014, which sought relief for an employee who had been transitioning from male to female.
The most recent lawsuit filed by the EEOC alleges that an employer refused to let an employee (who was previously male) use the women’s restroom after the employee informed her supervisors that she was transgender. The EEOC’s lawsuit alleges that the employee’s supervisors and coworkers subjected her to a hostile work environment, including hurtful epithets and intentionally using the wrong gender pronouns to refer to her. This case is now pending before a United States District Court in Minnesota and is certainly one to follow. EEOC v. Deluxe Financial Services, No. 15-cv-02646 D. Minn. 2015.
Given the trend towards expanding the reach of Title VII at the federal level, along with the many state and local laws prohibiting discrimination against LGBT individuals in the workplace, this year’s end is a great time for employers to review and update policies and handbooks to reflect current changes regarding discrimination for sexual orientation and gender identity. Equally as important, employers should make sure that their managers and employees receive training on these policies and that all employees are aware of the processes to file harassment or discrimination complaints in the company, and of their roles in maintaining a respectful workplace.
Ways employers can address LGBT rights include:
• Learn what laws currently apply. The reach of federal law is evolving quickly in this area. Utah has adopted a state-wide statute and Utah cities and counties have various ordinances. A handful of Idaho municipalities already ban discrimination based on sexual orientation in certain contexts. Employers should consult legal counsel to find out what laws apply.
• Revise your handbooks, policies, job applications, recruiting and training materials, and other materials to include sexual orientation and gender identity as prohibited bases for harassment and retaliation.
• Review your dress/appearance codes to make sure they are not inviting sexual orientation, gender identity, or other sex discrimination claims. Focus on professionalism and legitimate business-related needs.
• Train management, supervisors, and employees on the revised policies.
• Take action when you learn that an employee is undergoing a gender transition. Have a discussion with the employee regarding whether, how, and when to announce the employee’s transgender status; when/whether the employee will be changing names, the employee’s restroom preference, and any other applicable issues. Consult with counsel regarding your obligations.
Please contact Christina Jepson if you have any questions or would like additional information.
