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Lightspeed Evolution of LGBT Employment Law

Posted on 4/26/17

Lightspeed Evolution of LGBT Employment Law

If you think the world of staffing is constantly changing, you should try keeping up with the trends in LGBT employment law. From the recent Seventh Circuit Court’s decision in Hively v. Ivy Tech Community College to the EEOC’s strategic enforcement plan, the law is changing rapidly as it pertains to discrimination and the LGBT community. This is to say nothing of the rapidly changing public sentiment concerning LGBT issues and the negative publicity that ensues should you be caught on the wrong end. As of 2011, there were an estimated 700,000 transgender Americans and that number is much likely higher. Of these transgender Americans, 90% have experienced harassment, discrimination or mistreatment in the workplace. It is also important to note that where LGBT anti-discrimination laws exist, the rate of harassment/discrimination claims is roughly the same to other sex and race discrimination claims. In this post, I will try to outline some basics in this rapidly developing area of employment law and human resources.

Know the Terminology

In order to understand this, it is important that you have a good working definition of the terminology involved.

  • Gender – a person’s internal sense of being a man or woman as evidenced by their sexual identity, mode of dress, and social/cultural constructs.
  • Gender Identity—A person’s own gender identification, which could be the same or opposite from their birth sex. It is a deeply felt psychological identification as male or female which may or may not correspond to the person’s designated sex at birth or body.
  • Sex—a person’s biological sex at birth (male or female).
  • Transgender—a person who lives or wishes to begin living in the gender role opposite of their birth sex. It refers to a broad range of people who express their gender identity differently from what most people expect and includes people who are transsexual, gender non-conforming, and cross-dressers.
  • Sexual Orientation—a person’s sexual identity—gay, straight, bisexual. This is the preferred term when referring to someone’s emotional/physical attraction to the same or opposite gender.

Gender discrimination results from treating someone differently because that person identifies with a gender different from their biological gender.

What is discrimination?

In order to understand the laws around discrimination, one first needs to understand what constitutes discrimination and what an employee must show to prove discrimination. In order to prove discrimination, an employee must show:

  • He or she is a member of a protected class
  • He or she was qualified for the job in question
  • He or she was subjected to an adverse employment action
  • The employer treated similarly situated individuals outside of the protected class more favorably

Increasingly, the courts are recognizing discrimination and harassment of LGBT employees under Title VII of the Civil Rights Act. While LGBT is not a protected class, sex is and the courts are increasingly ruling that discrimination of LGBT employees is a form of sex discrimination. Furthermore, the EEOC is pursuing enforcement actions against private employers for LGBT discrimination.

There are many forms of sex discrimination or harassment against LGBT employees that you may not consider and can definitely be found liable for:

  • Using the incorrect pronoun (he/she) for a transgender employee—especially the reprehensible ‘it’. The proper pronoun to use with a transgender employee/person is to use the pronoun applicable to the gender they are presenting.
  • Comments about external appearance, even in jest.
  • Failure or reluctance to share gender conforming bathrooms—not allowing someone male presenting as a female to use the lady’s restroom.
  • Disciplining, termination, or refusing to hire applicants and employees because they do not conform to gender norms.
  • Retaliation—any adverse employment action against an LGBT employee, particularly one starting their transition from one gender to another. Retaliation is increasingly where more court cases are being pursued.

Laws Protecting LGBT Employees

Until recent court decisions, which are sure to be eventually decided by the U.S. Supreme Court, there is no federal law that explicitly protects LGBT individuals. Many states and local governments have stepped in to specifically address this issue:

  • 16 states prohibit gender identity discrimination
  • 22 states prohibit sexual orientation discrimination
  • Over 225 localities (cities, counties or parishes) at a minimum protect against sexual orientation discrimination—I am proud to say that Phoenix, Arizona, where BWSI is based, is one of those cities.

The EEOC in fiscal year 2015 received a total of 1,412 complaints/charges that included allegations of sex discrimination related to sexual orientation and/or gender identification. This is a 28% increase in the number of charges from the previous fiscal year. The EEOC in 2014 filed its first two suits on behalf of transgender employees against private employers. Furthermore, LGBT employees have been a top priority in the EEOC’s Strategic Enforcement Plan since 2013.

In a landmark case in 1989, the U.S. Supreme Court decided in Price Waterhouse v. Hopkins that a person’s gender and not just their biological sex is protected under Title VII and that Title VII prevents “gender stereotyping”. Gender stereotyping is where (and exactly what happened in this case) you discriminate against an employee because of their gender manifestation—i.e. “you aren’t female enough”, “maybe if you wore dresses or some makeup”.

It is also important to realize that other employees’ or clients’ discomfort or objection to the presence of a transgender employee in the restroom, for example, is not an excuse as a matter of law for discrimination.

Hively v. Ivy Tech Community College

On April 4, 2017, the Seventh Circuit Court of Appeals (and one considered relatively conservative) rocked the employment law world in an en banc (all the judges of the Seventh circuit) review of Hively v. Ivy Tech Community College. In an 8-3 ruling, they became the first federal court of appeals to rule that sexual orientation claims are actionable under Title VII. To quote:

“Viewed through the lens of the gender non-conformity line of cases, Hively represents the ultimate case of failure to conform to the female stereotype (at least as understood in a place such as modern America, which views heterosexuality as the norm and other forms of sexuality as exceptional); she is not heterosexual.”

The plaintiff, Kimberly Hively, alleged that Ivy Technical College where she worked as adjunct faculty, denied her fulltime employment and promotions for over 14 years and eventually terminated her because she is a lesbian. She applied for at least six fulltime positions over a five-year span, and received no promotions before her part-time contract was non-renewed in 2014. This decision is the first to clearly state that sexual orientation IS sex discrimination under Title VII. This decision is the opposite of other circuit courts and will definitely be ruled upon by the U.S. Supreme Court in my opinion.

Where to Go from Here?

As you can see, the law is rapidly evolving and the need to stay on top of these issues is vitally important for your staffing agency. A few best practices:

  • Awareness—Be aware of and monitor for changes all applicable state and local non-discrimination laws. This is especially key if your staffing agency is located in multiple states or even cities within the same state.
  • Training—Make sure your management and supervisors are aware of and comply with your policies—you can never have too much training in this area.
  • Compliance—Ensure that all your policies comply with non-discrimination laws. It may be time to review them now to see if dress codes, for example, can be changed to be more gender neutral. Many businesses are looking at how to make their restrooms gender-neutral—keep in mind you can’t force transgender employees to use a separate restroom or force them to use the restroom for the gender they do not identify with. You cannot require medical documentation or proof of transgender status.
  • Consistent—Ensure that all hiring and employment decisions are consistent and based on merit and not pre-conceived notions regarding sexual orientation and gender stereotypes.

The aforementioned best practices are really just common sense human resources practices and can be applied to just about anything regarding your employment practices. However, awareness, considering how rapidly this area of law is evolving is probably the most key as it pertains to LGBT employees. I can say from personal experience that the LGBT community is a goldmine of experience, talent, and initiative that will be an asset to any organization. At the end of the day, all your hiring and employment decisions should simply be based on merit—it is about attracting and placing the best talent that is the best fit for your clients after all.

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