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Progress in employment rights for LGBTQ community

July 14th, 2016  |  Lorene Park

By Lorene D. Park, J.D.

A few legislative and case law developments from the past month suggest a shift in how lawmakers are approaching LGBTQ rights to equality in the workplace. The LGBTQ community also seems to be gaining protections under labor and employment laws, if not yet full equality:

Armed forces get gender identity protections. On June 30, Secretary of Defense Ash Carter announced that transgender individuals will be able to openly serve in the U.S. armed forces. The new policy, which will be phased in during a one-year period, also establishes a construct by which service members may transition gender while serving, sets standards for medical care, and outlines responsibilities for military services and commanders to develop and implement guidance, training, and specific policies. Effective immediately, service members may no longer be involuntarily separated, discharged, or denied reenlistment solely based on gender identity.

OFCCP final rule on sex discrimination has gender identity provisions. The OFCCP announced a final rule on new sex discrimination regulations that align with current law and address the realities of today’s workplaces. Topics addressed in the final rule—which updates the provisions at 41 CFR Part 60-20 for the first time in over four decades—include discrimination based on gender identity bias. The final rule is slated to take effect on August 15. A fact sheet and FAQs are available on the DOL website.

EEOC settles one of its first sexual orientation discrimination suits. Pallet Companies, doing business as IFCO Systems, has agreed to pay $202,200 and provide equitable relief to settle one of the EEOC’s first lawsuits alleging that discrimination based on sexual orientation is actually discrimination based on gender in violation of Title VII. A lesbian employee at IFCO’s Baltimore facility was repeatedly harassed by her supervisor because of her sexual orientation, according to the EEOC’s suit. The supervisor allegedly made numerous comments to the employee about her sexual orientation and appearance, such as “I want to turn you back into a woman” and “You would look good in a dress,” and made sexually suggestive gestures. IFCO allegedly retaliated against the female employee by firing her just days after she complained to management and called the employee hotline to report the harassment. The same day the EEOC filed the IFCO case it also filed an unrelated sexual orientation discrimination suit against Scott Medical Health Center in the Western District of Pennsylvania (No. 2:16-cv-00225-CB).

Recent court decisions. Though a federal court in Florida did not agree that sexual orientation discrimination is based on gender, it found viable a theory that sexual orientation discrimination is based on gender stereotypes. That theory, which has been endorsed by the Eleventh Circuit, led the court here to deny a motion to dismiss a Title VII discrimination claim by a female EMT who claimed she was harassed and constructively discharged due to her perceived sexual orientation (Winstead v. LaFayette County Board of County Commissioners, June 20, 2016, Walker, M.).

In another case, a federal court in New York refused to dismiss a failure-to-hire claim by a transgender extern who was denied the use of the women’s restroom and restricted from participating in an examination of a female patient by a supervisor who said that “only females are allowed beyond this point” and that “he-shes . . . and gays will need to answer to Jesus” (Carr v. North Shore – Long Island Jewish Health Systems, Inc., June 23, 2016, Seybert, J.).

Other recent developments. There are some changes at the state level. For example, Massachusetts Governor Charlie Baker on July 8 signed compromise legislation, “An Act relative to transgender anti-discrimination,” to extend protections against discrimination for gender identity to any place of public accommodation, with the Massachusetts Commission Against Discrimination adopting regulations to enforce its provisions. “No one should be discriminated against in Massachusetts because of their gender identity,” Governor Baker said. “This compromise legislation extends additional protections to the Commonwealth’s transgender community, and includes language to address the public safety concerns expressed by some by requiring the Attorney General to issue regulations to protect against people abusing the law.”

Also of note, the District of Columbia Office of Human Rights, in conjunction with the National LGBTQ Task Force, released a best practices guide for employers on transgender applicants and employees. The publication, Valuing Transgender Applicants & Employees: A Best Practice Guide for Employers, goes beyond legal obligations to help create an inclusive workplace.