By Shaan Rizvi, Esq.
Since the Supreme Court’s decision to legalize same-sex marriage in Obergefell v. Hodges in 2015, the issue of LGBT rights has become one of the most salient issues in our public discourse. Almost every day, there is a news story or article relating to LGBT discrimination or the LGBT community in general. Given this constant flow of new information, it can be difficult for employers to keep up with the changes. In this newsletter, we will provide an overview of the current state of LGBT law as it pertains to the workplace.
Before embarking on our tour of the current state of LGBT law, it is important to define the terminology we will be using. Often these terms are used imprecisely, adding unnecessary confusion to this subject.
Sexual orientation is a person’s emotional, romantic, or sexual attraction to people of a certain gender (whether male, female, or both).
Gender identity is a person’s own understanding of his or her gender, which may or may not be different from that person’s birth gender (birth gender is generally understood to be the gender on one’s birth certificate). For example, an individual with a female birth gender may assert a male gender identity later in life.
Related to gender identity, gender expression refers to one’s external manifestation of gender – in other words, it refers to how a person chooses to express gender, including through that person’s choice of behavior, clothing, haircut, or tone of voice. Thus, the behavior and clothing of a male employee who chooses to “act feminine” and “dress feminine” are considered part of that employee’s gender expression.
Transgender is an umbrella term that encompasses both gender identity and gender expression. Thus, the term “transgender” may apply to any individual whose gender identity is different from his or her assigned birth gender, or any employee whose gender expression is unconventional according to societal norms. Further, transgender status is entirely separate from sexual orientation – a transgender employee may be straight, gay, lesbian, etc.1
Current Federal Law
Currently, there is no over-arching federal law that would protect employees from discrimination on the basis of sexual orientation or gender identity. Congress has repeatedly failed to pass the Employment Non-Discrimination Act (ENDA), which includes both a sexual identity and gender provision, and the likelihood of such a bill passing during the current Republican-controlled Congress is slim.2
Nonetheless, a number of federal agencies have adopted rules or regulations that may affect employers with LGBT employees. Notably, the Office of Federal Contract Compliance Programs (OFCCP) recently adopted Executive Order 13672, which forbids companies that contract with the federal government from discriminating on the basis of sexual orientation and gender identity. In January 2017, the White House issued a statement indicating President Trump intends to continue enforcing Executive Order 13672.3 Further, employers subject to the Family and Medical Leave Act (FMLA), which allows an employee leave to care for a “spouse” with a “serious health condition,” should know that as of March 2015, the Department of Labor has adopted a rule stating that an employee’s “spouse” under the FMLA includes his or her spouse from a lawful same-sex marriage, regardless of where that employee currently resides.4 Finally, the Occupational Health and Safety Administration (OSHA) recently weighed in on the national debate regarding transgender employees and bathroom usage. OSHA Sanitation Standard 1910.141 is intended to protect employees from adverse health effects when toilets are unavailable, including urinary tract infection and bladder issues. Because transgender employees may be hampered in their ability to use the restroom of their choice at work, possibly resulting in health issues, OSHA has taken the position that the employee should determine the most appropriate bathroom for him or her to use. The idea is that a transgender employee should be free to choose the bathroom that aligns with his or her gender identity, rather than birth gender. Similarly, OSHA has indicated that an employer should not require a transgender employee to use a segregated facility designed just for him or her.5 Although OSHA has yet to enforce these provisions against employers, this is an area employers may want to keep an eye on going forward.
Current State and Local Law
Although no federal protection for LGBT employees exists, many states have taken the initiative to pass their own LGBT legislation. Currently, in 20 states – including New York, New Jersey, Illinois, and California – it is illegal for employers to discriminate against employees on the basis of sexual orientation or gender identity. In two additional states – New Hampshire and Wisconsin – it is illegal for employers to discriminate against employees on the basis of sexual orientation (but not gender identity). The remaining 28 states have either enacted protections only for LGBT employees who work in the public sector in those states, or have no protections for LGBT employees at all.6
At the local level, hundreds of cities, towns, and municipalities have passed Non-Discrimination Ordinances (NDOs) to extend employment protections to LGBT employees living within their jurisdictions. These NDOs often include protections for LGBT individuals in the spheres of housing and public accommodation as well as employment.7 Most major U.S. cities – including Atlanta, Boston, Chicago, Dallas, Miami, New York, Philadelphia, and Washington D.C. – have enacted some form of LGBT friendly legislation.8
In response to the wave of pro-LGBT legislation at the state and local level, some traditionally conservative states have moved in the opposite direction. For example, North Carolina’s legislature enacted House Bill 2 (HB2), which bans North Carolina cities from passing NDOs, essentially asserting the primacy of the state over cities and municipalities on this issue. North Carolina’s bill also requires that transgender individuals in public schools and government buildings use restrooms corresponding to their assigned birth gender, rather than their gender identity.9
The onslaught of anti-LGBT legislation has not gone unnoticed, however, and large companies are leading the push to have such legislation repealed. Just this year, the National Basketball Association (NBA) moved its annual All-Star game from Charlotte to New Orleans, publically citing concerns about the discriminatory nature of HB2 as the reasons for its move. The NBA and National Football Association (NFL) have also publically warned Texas lawmakers that proposed anti-LGBT legislation in Texas could affect whether the NBA and NFL decide to hold big-ticket events, such as All Star games and Superbowls, in the state.10 Further, other large companies, including Google and PayPal, have also dropped plans to invest in North Carolina, and have promised not to make further investments until HB2 is repealed.
As the primary federal agency tasked with enforcing anti-discrimination law, the EEOC has been at the forefront of advocating for and defending LGBT rights in the workplace. Although Title VII does not currently include sexual orientation or gender identity as protected categories, the EEOC has taken the position that discriminating against an employee on the basis of his or her sexual orientation or gender identity is tantamount to discriminating against that employee based on sex (sex is a protected category under Title VII).11 Applying this view, over the last several years, the EEOC has issued decisions holding that an employer’s intentional misuse of a transgender employee’s new name and pronoun may be unlawful sex discrimination/harassment;12 that an employer’s failure to revise its personnel records pursuant to an employee’s change in gender identity constituted unlawful sex discrimination;13 and that an employer's restrictions on a transgender woman's ability to use a common female restroom facility constitutes disparate treatment.14
Although the EEOC does not have direct adjudicative authority over employers, and a “cause finding” by the EEOC is not binding on courts, employers should heed the EEOC’s positions on this issue for several reasons. First, courts are often deferential to the EEOC on employment law matters; as such, many courts may default to the EEOC’s position when deciding cases involving sexual orientation and gender identity discrimination. Secondly, an EEOC investigation eats up valuable company time and resources; accordingly, regardless of the state in which they operate, employers who wish to steer clear of the EEOC should avoid discriminating on the basis of gender identity and sexual orientation.
The Understanding of the Courts and Impending Court Cases
Currently, federal courts are divided on the issue of LGBT rights in the workplace. Based on a 1989 U.S. Supreme Court case, Price Waterhouse v. Hopkins, which held that gender stereotyping (e.g., discriminating against a woman because she is not feminine enough) could be a form of sex discrimination under Title VII, some federal courts have held that discriminating against a homosexual or transgender employee is per se a form of gender stereotyping, and should thus be prohibited as a form of sex discrimination under Title VII.15 Other courts have disagreed with this logic and have differentiated between sex discrimination and sexual-orientation discrimination, noting that if Congress wanted to make the latter unlawful, it would have explicitly included it as a protected category under Title VII.
There are two cases currently pending before federal appeals courts that appear to be poised to significantly move the needle regarding LGBT rights in the workplace. In Hively v. Ivy Tech Community College, which is before the 7th Circuit Court of Appeals, the Plaintiff, a math professor at a community college in Indiana, was allegedly denied promotions and ultimately fired after she was seen kissing her girlfriend in the parking lot. The 7th Circuit decided in favor of the employer, citing past legal precedent holding that Title VII does not apply to sexual orientation discrimination. Nonetheless, in its opinion, the Court offered a critique of the current state of the law, writing, “The cases as they stand do, however, create a paradoxical legal landscape in which a person can be married on Saturday and then fired on Monday for just that act. For although federal law now guarantees anyone the right to marry another person of the same gender, Title VII, to the extent it does not reach sexual orientation discrimination, also allows employers to fire that employee for doing so.” In a surprising move, in October 2016, the full 12-judge Court decided to vacate its earlier ruling in favor of the employer and rehear the case. This is a rare occurrence for a federal appeals court, and many commentators believe it indicates that the 7th Circuit is preparing to break with prior precedent and rule in favor of the Plaintiff. Oral arguments in the case were held in November 2016, and we are now awaiting a new ruling from the Court.16
Similarly, in Christiansen v. Omnicom Group Inc., the Plaintiff, a homosexual creative director, sued his employer in the federal court for the Southern District of New York (S.D.N.Y.), alleging he was routinely harassed due to his sexual orientation by his supervisor, who began ridiculing and taunting him shortly after he took a job with the company.17 The court, citing prior 2nd Circuit precedent holding that Title VII does not cover sexual orientation discrimination, decided in favor of the employer. Interestingly, however, in its opinion the Court identified “a shift in the perception, both of society and of the courts, regarding the protections warranted for same-sex relationships and the men and women who engage in them.” In its opinion, the Court seemed to anticipate an appeal, and the Plaintiff took the hint and appealed the case to the Second Circuit. On appeal, the Plaintiff explicitly asked the Second Circuit to reverse its precedent and hold that sexual orientation discrimination is unlawful under Title VII. Further, 128 members of Congress as well as the EEOC have filed a brief in support of the Plaintiffs.
Both the Christiansen and Hively cases should be closely monitored by employers, as decisions in favor of the Plaintiffs would result in a circuit split (i.e. the various federal circuit courts would have different rulings) on the issue, creating a strong likelihood of the U.S. Supreme Court will take up the matter.
In short, the arena of LGBT rights in the workplace is in continuous flux, with new developments occurring on a near daily basis. Employers must continue to monitor the situation in the states and the various federal appeals courts and take a proactive approach to avoid workplace incidents.