Haters gonna Hate (hate, hate, hate, hate): LGBT Discrimination in the Workplace

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A lot of people are talking about LGBT discrimination.  Yesterday, Texans in Houston voted to repeal a local LGBT anti-discrimination law which was considered by most to be a major blow to the LGBT community.  Interestingly enough, based on a recent EEOC List of "Top 10 Litigation Trends," LGBT discrimination ranked #4 with over 1100 EEOC charges filed in 2014 and over 600 charges in the first half of 2015.  Despite having the right to be lawfully married in all 50 states, there are still no federal anti-discrimination laws that apply to LGBT discrimination in the workplace.  In fact, LGBT is not even a federally protected class as far as employment discrimination is concerned.   So how can LGBT discrimination rank #4 with the EEOC's hot topics list? Answer: Title VII.   DUN. DUN. DUN.

Title VII & LGBT Discrimination 

Employers who fall under Title VII (meaning they have 15 or more employees), cannot discriminate based on sexual orientation.  Yes, yes, I realize Title VII only protects race, color, national origin, sex, and religion but most courts have held that discrimination based on sexual orientation is the same as discrimination based on sex.  Here are a few examples of how this has played out in the courts:

EX 1: Transgender man transfers jobs for family reasons.  Upon being transferred, he informs supervisor that he will be transitioning soon and will need to change his name and sex on all employment forms.  Suddenly a budget is cut and the job is "eliminated."  Transgender employee files EEOC complaint.  EEOC (in eventual appeal) holds that transgender employee can sue based on sex discrimination under Title VII.  Macy v. Department of Justice, EEOC Appeal No. 0120120821 (April 20, 2012).

EX 2:  Homosexual man is told his "gay stuff" is "distracting" to the workforce.  He is later denied a permanent position with the company.  EEOC (in another appeal) holds that he can sue under Title VII sex discrimination theory because being discriminated against for being gay is the same as sex discrimination for purposes of Title VII.  David Baldwin v. Dep't of Transportation, EEOC Appeal No. 0120133080 (July 15, 2015).

EX 3: Transgender employee denied job opportunity because she did not conform to social stereotypes about sex during the transitioning process.  EEOC filed suit on plaintiff's behalf (still pending but based on Title VII and sex discrimination).  EEOC v. R.G. & G.R. Harris Funeral Homes Inc. (E.D. Mich. Civ. No. 2:14-cv-13710-SFC-DRG filed Sept. 25, 2014).

I think you get the point, but more examples can be found here. 

What about North Carolina?

North Carolina has few employment laws and LGBT protections are unfortunately not one of them.  There is a public policy in NC that employers with 15 or more employees cannot discriminate based on sex so you may be able to get into court based on a Wrongful Discharge Against Public Policy theory.  

Don't want to be a Hater? This is what you should do:

Employers should protect LGBT employees from discrimination in the same way they are supposed to protect other protected classes from discrimination.  Based on recent EEOC decisions, employers with 15 or more employees should go ahead and protect LGBT employees like they would any other protected class (meaning protection is pseudo-mandatory under Title VII for covered employers).  

This protection usually starts as an anti-discrimination policy in an employment handbook and ends with the employer enforcing this policy by actively investigating any claims of LGBT discrimination.  Do yourselves a favor and make the EEOC happy and revise your anti-discrimination policies to include LGBT employees.  If you want an extra credit gold star from the EEOC, consider offering support services for LGBT employees, especially transgender employees undergoing a formal transition.

For those of you that do not have an anti-discrimination policy in your handbook or a well-written reporting procedure, I encourage you to add both of these policies to your handbook.  If you do not have an employment handbook (GASP!),  I highly, highly, HIGHLY recommend you get one no matter how small your company and no matter how cool and fair you think you are. 

 

Interested in developing an Employment Handbook?  We've got you covered. 

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