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March 5, 2019 | Talent Management Software | Posted by Brett Holubeck

Employment Law Update: What Employers Need to Know About Sexual Orientation and Gender Identity Discrimination

Sexual orientation discrimination is a major issue in the workplace, but it is still not clear if it is illegal (at least at the federal level). Currently 21 states prohibit discrimination based on a person’s sexual orientation and gender identity, two states interpret their prohibition on sex discrimination to include discrimination based on sexual orientation, and one state prohibits discrimination based on sexual orientation only. As of February 2019, Missouri joined the other states in protecting employees from discrimination based on their sexual orientation.

While there is clarity in these states, the federal law is unclear and contradictory. Currently, the Second Circuit (Connecticut, New York, and Vermont) and Seventh Circuit (Illinois, Indiana, and Wisconsin) have found that Title VII prohibits discrimination based on sexual orientation. The Fifth (Louisiana, Mississippi, and Texas) and Eleventh (Alabama, Georgia, and Florida) Circuits have found that sexual orientation is not protected under Title VII.

What’s Happening Now?

The Supreme Court is considering taking a case to determine whether Title VII protects employees from discrimination based on their sexual orientation. The Court has been considering whether to take the case since September and the case has been distributed at 8 conferences by the Justices. The issue in the case hinges on whether “Because of … sex” includes sexual orientation or is limited to a person’s sex (traditionally binary, male or female). As the Circuits are currently split, this is a perfect case for the Court to take. The applicability of Title VII will not be resolved until the Supreme Court takes the case or Congress and the President create a new law that clarifies the issue. With a divided Congress, it is highly unlikely that any bill would make it to the President. Thus, the only available avenue to resolve this issue remains with the Supreme Court.

The EEOC’s Take: Unlawful Forms of Discrimination Based on Sexual Orientation and Gender Identity

While the Supreme Court has yet to rule on the issue, the Equal Employment Opportunity Commission (EEOC) has begun investigating companies that discriminate based on sexual orientation or gender identity.

Unlawful actions by an employer according to the EEOC include:
  • Refusing to hire or promote a person because they are same-sex attracted, they are undergoing a gender transition, or are transgender.
  • Harassing an employee because of their gender identity or sexual orientation which includes failing to use the gender pronoun that an employee identifies with, denying health benefits to employees (or their spouses) because of their sexual orientation and gender identity, and using derogatory remarks against persons because of their sexual orientation or gender identity.

Sexual Orientation Discrimination and Sex Stereotyping

The EEOC currently has a number of pending cases involving claims of sexual orientation discrimination and sex stereotyping. The cases demonstrate the direction that the law could take if the Supreme Court determines that Title VII protects employees from discrimination based on their sexual orientation.

EEOC v. Scott Medical Health Center, P.C involves an employee that was discriminated against on the basis of his sexual orientation because he did not conform to traditional gender-based expectations. A supervisor knew that he was gay and made comments that were based on sex stereotypes. This sort of discrimination may be illegal under the current interpretation of Title VII as sex stereotyping can be a form of sex discrimination.

There are a number of similar cases that involve claims that a person discriminated against or harassed someone because they failed to conform to a stereotype commonly placed on their sex. Many of these claims were allowed to move forward on the basis that sex stereotyping is a form of gender discrimination. Unfortunately for many employers, this sort of behavior can be commonplace in a number of businesses. A lot of jobs may have employees that make fun of other employees for failing to be “man enough” or “not acting like other women do.” All businesses need to be careful when this sort of behavior occurs and quickly take actions to prevent it. If employers fail to act, then the EEOC or the employee will likely sue.

What Should Companies Do?

All companies should aim to make their employees feel comfortable in the workforce and, even if some negative workplace behavior is currently not illegal, it should not be permitted. Regardless of how the Supreme Court ultimately rules on the issue of Title VII and sexual orientation, all companies should have a policy that prohibits discrimination based on an employee’s sexual orientation and gender identity. Every employer should strive to have a workplace culture that enables its workforce to be effective at their jobs and have a high morale, and that includes making sure employees feel accepted and are treated with respect. Behavior that goes against this is something that should be avoided and not tolerated in the workplace. Companies should discipline/counsel employees for these personal disputes as needed.

How Can Companies Prevent this Sort of Discrimination?

Workplace Culture: Preventing discrimination, of any kind, is contingent upon a true positive company culture. This means employers don’t just provide trainings around behavior in the workplace when there is a problem, they proactively communicate with employees the expectations around behavior and language in the workplace. When an issue is brought up to an employer, they are readily available and quickly address the issue. Making employees feel comfortable enough to bring up any issues is key. Addressing them appropriately and thoroughly creates trust between employees and the employer, and assures employees that the employer will practice what it preaches.

Comprehensive Training for Employees and Management: In addition to this, adequately training your employees and managers to identify and address these issues is essential. Specifically, with sexual harassment training, many employees struggle to relate or understand the importance because they have not been a victim or perpetrator of the harassment themselves, so conducting bystander training as a part of your process is necessary. There is often a reluctance on the part of employees to get involved when they did not say/do it or it wasn’t said or done to them. All employers need to show employees why they need to speak up. Just like any company would expect an employee to disclose that an employee is drunk or high at work (especially when the employee is in a safety sensitive position like driving a forklift or operating a crane), employees need to understand that everyone deserves an environment free from harassment and discrimination. It helps all workers to be more productive and creates a positive workplace culture.

Here are some suggestions on how you should organize the training for your employees:

  • Break employees into small groups of 10 to 15 employees to conduct the training.
  • Encourage employees to engage in a dialogue about what sort of behaviors are appropriate and not appropriate in the workplace.
  • Be prepared to direct the conversation as needed to discuss what constitutes discrimination and harassment based on a person’s sexual orientation and gender identity. (Note: Don’t forget that sexual harassment already includes sexual harassment that happens between people of the same gender.)
  • Outline how employees should respond when they witness harassment or discrimination, including who they should report an incident to.
  • Discuss why it is important to report these incidents.

Employers need to conduct separate training for their managers. Managers need to know a lot more than the average employee because they must be prepared to intervene and support individuals through any suspected issue of harassment or discrimination. They must also be prepared to apply the policies that the company has regarding harassment and discrimination. They need to understand how to appropriately and legally respond when a victim of harassment or a bystander reports harassment. This is a critical step to make your business a safe work environment and to improve and protect the company’s culture and morale.

Written Documentation: Employee handbooks should clearly state that the company will not tolerate discrimination based on gender identity or sexual orientation. As with any other violation of company policy, if this policy is violated employers need to document items such as the reasons that an employee is being disciplined, the discipline that the company applied, and any corrective action that the employee needed to take. These steps are essential to quickly and effectively respond to any allegations of harassment.

In Closing…

Sexual orientation and gender discrimination are two of the hottest topics in employment law right now. If the Supreme Court decides to hear the case related to sexual orientation, then employers across the country will begin to get some clarity on how the courts will interpret Title VII and the federal regulations related to sexual orientation discrimination. Until then, all employers are stuck with the current patchwork of state laws and differing interpretations of federal law. It is better, and necessary, for employers to be proactive and cautious in preventing harassment of all kinds in their workplaces, and this certainly includes having no tolerance of discrimination based on sexual orientation and gender identity.

Brett is an Attorney for Liskow & Lewis. Brett helps employers solve the most persistent legal workplace problems including those related to labor unions, workplace investigations, and other employment law issues.