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
The United States District Court for the District of Columbia denied an employer's motion to dismiss a homosexual employee's claim that he was discriminated against for failing to conform to the employer's traditional male stereotypes.
The EEOC recently entered into a consent decree with Roy Farms Inc. in which the employer agreed to pay $85,000 to settle a same-sex harassment lawsuit. This type of settlement should alert an employer that although sexual orientation is not a protected class under federal law, same-sex harassment and gender stereotyping violate federal civil rights laws.
The EEOC entered into a consent judgment with Boh Bros. Construction Co., in which the employer agreed to pay $125,000 to settle a same-sex harassment case that has bounced from the trial court to the 5th Circuit Court of Appeals and back.
The City of Tempe, Arizona recently passed an antidiscrimination ordinance that prohibits employment discrimination based on race, color, gender, religion, national origin, familial status, age, disability, US military veteran status, sexual orientation and gender identity. Tempe employers (with one or more employees), labor organizations and city contractors are covered by the ordinance.
In a speech to a conference of state attorneys general in Washington, D.C., Attorney General Eric Holder said state officials are not required to defend laws they consider to be discriminatory based on sexual orientation. The speech came on the heels of several federal court rulings striking down state bans on same-sex marriage.
XpertHR has expanded its health care benefits content for all 50 states and the District of Columbia to reflect Affordable Care Act implementation and same-sex marriage developments.
The Supreme Court has put a stop to same-sex marriages in Utah while the appeals process runs its course in a case with broad national ramifications. Left unclear is what happens to benefits for the many same-sex couples legally married in Utah during the last two-plus weeks should the state ultimately prevail.
Same-sex marriages began in earnest in Utah on the evening of December 20, after US District Judge Robert J. Shelby struck down the state's voter-approved ban.
XpertHR has been updated to reflect new same-sex marriage rulings in Illinois and New Mexico.
HR guidance on ensuring that workplace policies and practices do not discriminate based on sexual orientation or gender identity.