Overview: Although sexual orientation and gender identity are currently not protected under federal law, many state and local laws prohibits applicant and employee discrimination based on sexual orientation and/or gender identity. Therefore, it is best practice for an employer to prohibit discrimination based on sexual orientation and gender identity.
This means that an employer should have a zero tolerance policy and strictly prohibit treating an individual unfairly based on sexual orientation or gender identity as well as prohibit slurs and stereotypes intended to cause a hostile work environment. An employer should also understand that training employees and supervisors on sexual orientation and gender identity issues will raise awareness and increase tolerance.
Further, because sexual orientation and gender identity are sensitive issues, an employer needs to know how to adequately confront challenging workplace issues.
An employer must be prepared to make reasonable accommodation for transgender individuals with respect to dress codes, rest rooms and managing employee privacy and confidentiality with regard to transitioning employees.
Trends: Employers should be aware of the rapidly changing law with regard to the protection of sexual orientation and gender identity. The Employment Nondiscrimination Act is presently pending in Congress. Currently, it would prohibit discrimination based on sexual orientation only.
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.
Employers should also be aware that in a landmark ruling, Macy v. Holder, EEOC No. 0120120821, the EEOC recently held that an transgender employee was permitted to bring a discrimination claim under Title VII 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. This could open the doors to greater employment protection for transgender workers.
Author: Beth P. Zoller, JD, Legal Editor
The Idaho Employment Law Manual sections on Discrimination, Terms of Employment, and Interviewing and Selecting Job Candidates have been updated to reflect two new ordinances that recently took effect in Pocatello and Coeur d'Alene prohibiting employment discrimination against lesbians, gays, bisexuals and transgender (LGBT) individuals.
Employers in Pocatello and Coeur D'Alene, Idaho, may need to revise their workplace policies and practices regarding discrimination, interviewing and hiring to comply with two new ordinances that recently went into effect (June 10 in Pocatello and June 7 in Coeur d'Alene).
XpertHR has updated its Pennsylvania EEO-Discrimination content to reflect a new Philadelphia ordinance that expands the rights of lesbians, gays, bisexuals and transgender individuals (LGBTs) in the workplace.
Philadelphia has enacted a new ordinance expanding the rights of lesbians, gays, bisexuals and transgender individuals (LGBTs) in the workplace, which may significantly affect employment policies and practices.
On May 14, 2013 Minnesota became the 12th state to legalize same-sex marriage.
Minnesota's EEO-Discrimination section in the Employment Law Manual has been updated to include Minnesota's new law legalizing same-sex marriage. The law will take effect on August 1, 2013.
The Delaware sections on EEO-Discrimination, Health Care Continuation (COBRA) and Health Care Benefits have been updated in XpertHR's Employment Law Manual to include a new law permitting same-sex marriage which goes into effect on July 1, 2013.
Delaware is now the 11th state to permit same-sex marriage under a new law that will go into effect on July 1, 2013.
The Rhode Island sections of the Employment Law Manual on EEO-Discrimination, Health Care Continuation (COBRA) and Health Care Benefits have been updated to include a new law permitting same-sex marriage.
Rhode Island has passed a law legalizing same-sex marriages, which takes effect on August 1, 2013.
HR guidance on ensuring that workplace policies and practices do not discriminate based on sexual orientation or gender identity.
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