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. Additionally, the Supreme Court made history in June 2013 by issuing two decisions favoring same sex marriage proponents and extending same-sex couples greater benefits and protections.
Author: Beth P. Zoller, JD, Legal Editor
Hawaii and Illinois will become the 15th and 16th states to recognize same-sex marriage. The Hawaii measure takes effect December 2, while Illinois Governor Pat Quinn will sign a similar law on November 20. Both states had previously offered civil unions to same-sex couples but had limited marriage to one man and one woman.
The Missouri Supreme Court has ruled the state did not commit sexual orientation discrimination in denying survivor benefits to the same-sex partner of a state trooper killed in the line of duty. The ruling is one of the first on same-sex benefits since the US Supreme Court struck down Section 3 of the Defense of Marriage Act.
New Jersey has become the 14th state to recognize same-sex marriage after its state Supreme Court denied a last-ditch appeal from Gov. Chris Christie's administration to delay recognition of such marriages.
The newly-added "Benchmarking and Surveys" category within the Best Practice Manual Tool now contains a report on the top 10 states friendly to lesbian, gay, bisexual and transgender (LGBT) employment.
This report looks at the top 10 states with the most LGBT protections, the implications of the state LGBT laws in place and the corporate initiatives in these LGBT-friendly states. See California, Connecticut, Iowa, Maine, Massachusetts, Minnesota, New York, Rhode Island, Vermont, Washington.
Following the historic ruling on the Defense of Marriage Act (DOMA) in June by the US Supreme Court permitting same-sex marriage, New Jersey appears to be the latest state to follow suit. On September 27, 2013, a New Jersey court ruled in Garden State Equality v. Dow, L-001729-11 (New Jersey Superior Court, Mercer County, September 27, 2013) that beginning on October 21, 2013, same-sex couples should be allowed to marry.
As evidenced by a recent $50,000 settlement of a transgender discrimination case, the Equal Opportunity Commission (EEOC) will not hesitate to pursue employers that discriminate based on sexual orientation and gender identity.
In-depth review of the spectrum of Texas employment law requirements HR must follow with respect to interviewing and selecting job candidates.
This Supervisor Briefing examines the law and best practices for understanding issues with respect to lesbian, gay, bisexual and transgender (LGBT) individuals in the workplace including understanding frequently used terms, preventing and responding to incidents of harassment and discrimination, and handling sensitive issues such as dress codes, restrooms and transitioning employees.
The EEO - Discrimination, Recruiting, and Interviewing and Selecting Job Candidates sections of the Texas Employment Manual as well as the States and Major Municipal EEO Protected Classes - Chart and LGBT Rights in States and Major Municipalities Chart have been updated to reflect that San Antonio recently amended its nondiscrimination ordinance to prohibit discrimination based on sexual orientation, gender identity and veteran status.
HR guidance on ensuring that workplace policies and practices do not discriminate based on sexual orientation or gender identity.