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Antidiscrimination protections for LGBT employees and applicants accelerating

January 31st, 2013  |  Pamela Wolf

Employment discrimination based on sexual orientation and/or gender identity continues to be an emerging area of the law with the trend toward added protection. Employers that have not already done so should consider adding antidiscrimination coverage on those bases to their internal employment policies.

EEOC targeting LGBT bias. Although Title VII of the Civil Rights Act of 1964 has not been interpreted to expressly provide protection from employment discrimination to lesbian, gay, bisexual, and transgender (LGBT) individuals as a protected category, the EEOC in 2012 crystallized its view that these individuals may be afforded protection under a sex stereotyping theory, or whenever intentional discrimination against such an individual is due to his or her LGBT status. In its Macy v Holder decision, the commission stated that “intentional discrimination against a transgender individual because that person is transgender is, by definition, discrimination ‘based on …sex,’ and such discrimination therefore violates Title VII.”

EEOC Commissioner Chai Feldblum (who was integral to the Macy decision) has characterized the decision as clarifying what courts have not always done as clearly: that a Title VII claim for discrimination because a person is transgender can be brought based on gender stereotyping or because “gender was on the brain” and clearly taken into account. When gender is taken into account, Title VII is violated, according to Feldblum. The EEOC has also formed a LGBT work group to advise its General Counsel on how to make sure that LGBT individuals are not being carved out and receiving less protection under statutes enforced by the EEOC. The work group is looking at federal districts and circuits around the country in an effort to identify areas where a case may be brought to apply Macy, or theories of sex-plus or associational discrimination. In its Strategic Enforcement Plan for fiscal years 2013-2016, the EEOC has formally declared its intent to target coverage of LGBT individuals under Title VII’s sex discrimination provisions, as they may apply.

Washington and the courts. Some federal district courts have found employment discrimination based on sexual orientation unlawful via a sex stereotyping theory or have found a hostile work environment based on sex. President Barack Obama has declined to sign an executive order that would ban workplace discrimination by federal contractors on the basis of sexual orientation, preferring instead to encourage passage of “inclusive” legislation that would prohibit all employers from discriminating based on sexual orientation and gender identity. The president has hung his hopes on the Employment Non-Discrimination Act, a “legislative solution to LGBT employment discrimination” that has so far failed to pass.

State coverage progressing. There are, however, explicit emerging state laws protecting LGBT employees, including many with gender identity protections. Twenty-one states plus the District of Columbia have laws that prohibit both private and public sector employers from discriminating based on sexual orientation, and in some cases, gender identity. An additional ten states prohibit such discrimination only by state and/or public employers. Similarly, more states are legislatively, judicially, or by voter initiative approving same-sex marriage protections. In the national election on November 6, voters in Maine, Maryland, and Washington endorsed same-sex marriage. Six other states and the District of Columbia permit such marriages. These laws have a broad impact in the employment context in areas such as employee leave and benefits. That these issues will continue to be at the forefront is signaled by the U.S. Supreme Court’s willingness to take up the Defense of Marriage Act (which nullifies gay and lesbian marriages for all purposes of federal law) and California’s Proposition 8 (a constitutional ban on marriage equality) this March.

Businesses adding protection. Meanwhile, the business community, perhaps because it must be more forward-looking than the Congress and the federal government in order to thrive, has continued to carve out protections for the LGBT community through internal employment policymaking. The Human Rights Campaign Foundation’s Corporate Equality Index (CEI), the national benchmarking tool on corporate policies and practices related to LGBT employees, rated the entire Fortune 500 list, and found that for the first time, the majority have nondiscrimination policies that cover gender identity (57 percent). Eighty-eight percent of Fortune 500 companies cover sexual orientation discrimination in their nondiscrimination policies.

Looking ahead. The trend is clearly building toward coverage of sexual orientation and gender identity discrimination in antidiscrimination protections that apply to businesses. Employers may be wise to follow the lead of the Fortune 500 and ensure that LGBT employees and applicants are protected from employment discrimination through internal policies before the EEOC — or its state counterparts — come knocking on their doors.