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
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Updated to reflect EEOC Fact Sheet on bathroom access rights for transgender employees.
HR guidance on ensuring that workplace policies and practices do not discriminate based on sexual orientation or gender identity.