Equal treatment for the lesbian, gay, bisexual, and transgender (LGBT) community seemed like a pipe dream in 1996 when the Defense of Marriage Act (DOMA) was passed defining marriage as being between one man and one woman.
But things came full circle in June 2013 when the Supreme Court declared DOMA unconstitutional. With attitudes changing significantly over the past two decades, employers should be aware of five key developments involving LGBT issues that are sure to expand employment law protections.
1. US Supreme Court Strikes Down DOMA
In June 2013, the Supreme Court made history by issuing two decisions favoring same sex marriage proponents. In United States v. Windsor, the Court struck down section 3 of DOMA, which denies federal benefits to same-sex couples, as a violation of the constitutional guarantee of equal protection under the law. As a result of this ruling, married same-sex couples residing in states where same-sex marriages are legal are now eligible for more than 1,000 federal benefits and protections linked to marital status. In states where same sex marriage is recognized, same-sex spouses will be afforded protection under federal laws such as COBRA, the Family and Medical Leave Act (FMLA) and ERISA.
Meanwhile, in Hollingsworth v. Perry, the Supreme Court ruled that supporters of Proposition 8–a California ballot initiative that banned same-sex marriage–did not have the right to appeal the lower court’s order striking down the law. The ruling enables same-sex marriages in California to resume.
2. EEOC Increasing Transgender Protections
Employers should also be aware that in an April 2012 the EEOC held in Macy v. Holder that a transgender employee was permitted to bring a discrimination claim under Title VII of the Civil Rights Act because claims of discrimination based on gender identity, change of sex, sex stereotyping and transgender status were a form of sex discrimination as such claims were based on sex. The EEOC’s position could open the doors to greater employment protection for transgender workers.
3. State and Local Protections Also Expanding
Although sexual orientation and gender identity are currently not protected under federal law, many state and local laws prohibit discrimination against employees and job applicants based on sexual orientation and/or gender identity. Further, some states prohibit discrimination based on sexual orientation and gender identity while some states have laws that protect against discrimination based on sexual orientation only.
Also, some states have laws and administrative policies addressing sexual orientation and gender identity in public employment. Additionally, over 200 cities and counties prohibit discrimination based on sexual orientation and gender identity. This number continues to grow. What’s more, a number of states have passed laws allowing same sex couples to marry or enter into civil unions and providing benefits and leave for same-sex spouses or partners.
4. Presidential Support of LGBT Rights
President Barack Obama’s support for gay rights and same-sex marriage has been evident from the start of his presidency. In 2011, Obama signed a law repealing the military’s Don’t Ask, Don’t Tell policy. In 2012, he became the first sitting US President to express his support for same-sex marriage. This carried through to his Second Inaugural Address in which he compared the struggle for gay rights and the Stonewall riots to the struggle for civil rights in the Deep South during the 1960s and women’s rights at Seneca Falls.
5. Keeping Up With the Changing Times
As a result of the continued progress of LGBT rights in the workplace, prudent employers should take the following steps:
- Implement and enforce a policy prohibiting discrimination based on sexual orientation and gender identity;
- Provide training to all employees, supervisors and managers on sexual orientation and gender identity and advise them to avoid using gay slurs and stereotypes intended to cause a hostile work environment;
- Provide same sex spouses or partners with equal benefits when it comes to health benefits, sick time, bereavement leave, FMLA and other leaves of absence. Although state requirements vary widely, this is a best practice;
- Make reasonable accommodations for transgender individuals with respect to dress codes, rest rooms and locker rooms, employee name changes, and managing employee privacy and confidentiality with regard to transitioning employees; and
- Take all discrimination and harassment complaints based on gender identity and sexual orientation seriously and follow up with a thorough investigation and, if needed, disciplinary measures.