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Complexities in LGBT employment rights create legal quagmire for employers

May 4th, 2012  |  Lorene Park

The rights of individuals who are lesbian, gay, bisexual, or transgender (LGBT), and of those who simply do not conform to society’s gender stereotypes, differ sharply by state, and the lines being drawn continue to shift at both the state and federal levels. Indeed, just this spring, Maryland and Washington joined Connecticut, the District of Columbia, Iowa, Massachusetts, New Hampshire, New York, and Vermont in recognizing same sex marriages. More recently, the federal Equal Employment Opportunity Commission (EEOC) issued a decision clarifying its position that Title VII protects transgender individuals from discrimination.

Given the complexities of the issues involved and the rapidly changing nature of this area of law, it’s quite a challenge for employers to keep up. Further clarification is needed as to the protections afforded LGBT individuals under discrimination laws, as well as the effect of LGBT status on family leave and other employee benefits. In the meantime, employers should keep an eye out for further developments.


Although many states prohibit discrimination based on sexual orientation, federal courts generally hold that Title VII does not (e.g., Jantz v Emblem Health, SDNY, 2012). However, federal courts have held that Title VII prohibits discrimination based on gender stereotypes. For example, the Third Circuit ruled that a self-described “effeminate” gay man who spoke in a high voice, was well-groomed, sat like a woman, and was called “Princess” by coworkers, could proceed with his claim because the alleged harassment was based on his nonconformity with the masculine stereotype, not sexual orientation (Prowel v Wise Bus. Forms, Inc, 3d Cir. 2009). Courts have noted that the distinction between sexual orientation and stereotypes creates analytical problems, since stereotypes about how men and women should behave often overlap with notions about sexuality.

In some cases, gay and lesbian employees have alleged religious discrimination based on the fact that they do not share coworkers’ views that homosexuality is a sin. Courts have rejected such claims, ruling that the alleged bias was based on sexual orientation, not religion (e.g., Pedreira v Kentucky Baptist Homes, 6th Cir. 2009). On the other hand, one federal district court recently upheld a professor’s religious bias claim where her religion required rejecting homosexuality and she was denied a position in a department staffed by faculty who support the LGBT community (Gadling-Cole v West Chester University, EDPa 2012). The court rejected the university’s position that her claim was actually based on her (heterosexual) sexual orientation and not her religion.


Federal courts are split on whether Title VII extends to retaliation claims by employees who allegedly suffered an adverse employment action after opposing sexual orientation bias. The Ninth Circuit and district courts in the Second Circuit have held that it does, while the Sixth and Seventh Circuits have held otherwise. A federal district court in New York recently explained the analytical difficulties (Birkholz v City of New York, EDNY 2012). In that case, a gay school counselor was denied certain benefits after complaining about what he believed to be unlawful sexual orientation bias, including being banned from working with fifth graders and required to leave his office door open. The court dismissed his Title VII bias claim but upheld his Title VII retaliation claim, stating that even though sexual orientation is not a protected status under Title VII, it is a protected status under New York law and a “layperson should not be required to expertly parse the overlapping provisions of federal, state, and local civil rights laws to determine” which make sexual orientation bias unlawful.

Employee benefits

There is a complex relationship between state and federal law with respect to employee benefits as well. In April, a federal district court in Minnesota ruled that a benefits fund breached the terms of the plan by terminating the enrollment of an employee’s spouse after deciding that the spouse, who is transgender, was not legally married to her husband because she was not female at birth (Radtke v Miscellaneous Drivers & Helpers Union Local No 638, DMinn 2012). The spouse had sex-reassignment surgery and changed her birth certificate before the marriage, and was recognized as female under federal and state law, as shown by her birth certificate, social security card, and driver’s license; thus her marriage was valid, determined the court.

In another example, a Michigan federal court dismissed an employee’s FMLA claim because Michigan does not recognize same-sex marriage and her claim was based on her employer’s failure to approve leave to care for her same-sex partner who had brain cancer (Copeland v Mid-Michigan Regional Medical Center, ED Mich 2012). Because her partner was not a “spouse” in Michigan, she was not entitled to the FMLA leave. Likely, a court in a state recognizing same-sex marriage would have ruled otherwise.

At least with respect to the birth or adoption of a child, the scope of the FMLA is less confusing. The U.S. Department of Labor has clarified that the FMLA allows employees to take leave for the birth of, to bond with, or to care for, the child of a domestic partner, even if the employee has no biological or legal relationship with the child.

Navigating the quagmire

Faced with these uncertainties and changes in the scope and application of federal and state laws, employers have few options. The usual advice applies: create and enforce a policy prohibiting discrimination, include it in handbooks, and train employees and managers. Employers should also tread carefully until there is clarification on their obligations if a conflict arises between the rights of LGBT employees and those whose religion requires rejecting LGBT lifestyles. Encourage workplace neutrality, and to the extent individuals cannot work together, be sure that any solution to resolve the conflict is applied fairly and does not result in an “adverse employment action” such as a reduction in hours. Finally, monitor changes in this area of law and respond accordingly.