In landmark rulings, the U.S. Supreme Court approved marriage between two individuals of the same sex. But equality in matrimony does not mean equality in the workplace. The laws on how an employer can treat an employee on the basis of sexual orientation or gender identity are ambiguous and differ by state. Some states have laws preventing LGBT discrimination, others don’t. And the Supreme Court hasn’t ruled definitively on this yet to clean up the discrepancy and confusion at the state-level.
But before you go searching for the laws passed at your local state house, know that the U.S. Supreme Court does not need to rule for there to be federal laws that offer many protections to lesbian, gay, bisexual, and transgender (LGBT) employees. And these protections apply nationwide, even in the 28 states that have not yet passed their own laws regarding sexual orientation discrimination.
A Legal History Lesson
Until 1964, there were very few limitations on discrimination in employment. Employment protections began with Title VII of the Civil Rights Act. Title VII of the Civil Rights Act and subsequent laws prohibit discrimination against employees who are in certain protected classes. Those classes are race, sex, color, religion, national origin, age, disability, pregnancy and veteran status.
The current debate is whether the protected class of “sex” includes protections from discrimination on the basis of sexual orientation or gender identity. Protected class is important because under the Federal Law, it is legal to fire an employee for any reason other than because they are in a protected class. For example, issuing IQ tests for employment screening is ok because intelligence is not a protected class. It is illegal, however, to fire a woman because she is pregnant. That would be discriminating in employment based upon a protected class. The current debate is whether sexual orientation and gender identity are protected from discrimination under the protected class of “sex”.
Many federal courts and even the Supreme Court have held that some employment actions regarding gender identity or sexual orientation fall under the protected class of “sex”. There are many courts, however, that have held that some behaviors regarding gender identity and sexual orientation discrimination claims are not protected.
The Laws On The Side of the LGBT Population
Twenty-two states have drafted language that at the state level makes clear that sexual orientation or gender identity are protected from discrimination.
The government agency where employees may file discrimination complaints, the Equal Employment Opportunity Commission (EEOC), includes sexual orientation, gender identity, and transgender status as part of the protected class of “sex”. The EEOC received 1,412 charges of discrimination based upon sexual orientation and recovered $3.3 million in monetary relief from employers in 2015. The EEOC is a federal agency, with posts filled by appointment of the President, subject to confirmation by the Senate.
Being inclusive of sexual orientation in employment is the safest approach. If you live in a state where there are laws protecting employers on the basis of sexual orientation or gender identity, discrimination is against state law. And if you live in a state where there are no laws about sexual orientation and gender identity in the workplace, the EEOC protections will apply.
The Dos & Don’ts
Avoid fines, the heavy cost of litigation, and potentially creating a hostile work environment for LGBT employees by sticking to these Dos and Don’ts.
Prevent an employee from posting pictures of their significant other on their desk
Make employment decisions such as hiring, firing, or deny a promotion because an employee has a same sex partner or is transgendered
Make comments about the employee dressing too masculine or too feminine
Make jokes or use humor about sexual orientation
Prohibit an employee from using the Family and Medical Leave Act to care for a same sex spouse
Invite same sex spouses if spouses are invited to an event
Let employees know that your business does not discriminate against employees based upon protected classes including sexual orientation
Let employees know that there will not be harassment or discrimination at work if an employee discloses that they are LGBT
Use the proper masculine or feminine pronoun according to the employee’s identification (“he”, “she”, or “they”)
Allow the employee to use the bathroom with the gender the employee identifies with.
Update harassment trainings and policies to include gender identity
Enforce harassment policies evenly for all employees regardless of sexual orientation
Even though the law may not be fully settled yet across the country, employment actions that discriminate against employees on the basis of sexual orientation or gender identity are not good for business.