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. Additionally, President Obama has expressed that he will sign an Executive Order prohibiting discrimination by federal contractors based on sexual orientation and 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.
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.
Additionally, the EEOC has identified pursuing discrimination based on sexual orientation and gender identity as a priority in its Strategic Enforcement Plan.
Author: Beth P. Zoller, JD, Legal Editor
The Texas Supreme Court has ordered the Houston City Council to either repeal the city's 2014 equal rights ordinance or place it on November's ballot. The ordinance prohibited discrimination based on a number of factors, most notably for sexual orientation and gender identity.
In a historic ruling, the EEOC has found that sexual orientation discrimination in the workplace is illegal under Title VII of the Civil Rights Act.
The Supreme Court has ruled 5-4 that the Constitution requires all states to license same-sex marriages and to recognize such marriages when they were lawfully licensed and performed out of state. The Court's historic holding clears the way for same-sex marriage nationwide in finding that same-sex couples cannot be denied the benefits that are afforded to opposite-sex couples.
Federal agencies recently reissued an updated guide on protecting lesbian, gay, bisexual and transgender federal workers from discrimination and harassment in the workplace.
A new XpertHR podcast examines the uproar over the controversial Indiana Religious Freedom Restoration Act. Opponents had claimed the original measure sanctioned discrimination against the LGBT community. Indianapolis employment attorney Stuart Buttrick, of Faegre Baker Daniels discusses how employer complaints sparked an amendment to the law.
A change in the definition of spouse under the Family and Medical Leave Act (FMLA) broadens coverage to same-sex spouses in states that do not recognize same-sex marriage.
This How To details the steps a prudent employer should take to prevent discrimination based on sexual orientation and gender identity.
This section of the XpertHR best practice manual discusses the key steps that employers can take to ensure that transgender individuals receive fair and equal treatment in the workplace.
Indiana Governor Mike Pence has signed a controversial law that prevents the government from infringing on a business's or individual's religious liberty in the Hoosier State. The Indiana Religious Freedom Restoration Act (RFRA) allows any for-profit business to assert a free exercise of religion claim. But opponents claim this law sanctions discrimination against the LGBT community.
Utah law will soon prohibit discrimination based on sexual orientation and gender identity.
HR guidance on ensuring that workplace policies and practices do not discriminate based on sexual orientation or gender identity.