As the debate over gay marriage continues to intensify throughout the country, so does the issue of workplace rights for the lesbian, gay, bisexual and transgender (LGBT) community. LGBT workers currently face substantial legal uncertainty when it comes to workplace discrimination. They do not currently benefit from nationwide protections against discrimination. Instead, LGBT protections consist of a confusing patchwork of judicial and agency interpretations combined with state, municipal and local laws that make discrimination actionable only under certain theories or at specific geographic locations. Protections can vary widely by location, sometimes even by county within the same state. As a result, LGBT workers continue to face discrimination in employment with relatively few, if any, legal protections.
The United States Equal Employment Opportunity Commission (EEOC) has, however, taken notice of this blind spot in workplace discrimination laws and has reversed course. Recently, it has amplified its interest in protecting the rights of LGBT workers nationwide by broadly interpreting Title VII of the Civil Rights Act of 1964 (Title VII). It is no coincidence that the EEOC's newly released Strategic Enforcement Plan for 2013-2016 lists "coverage of lesbian, gay, bisexual, and transgender individuals under Title VII" as one of its top six national enforcement priorities. This means that employers should expect the EEOC to take significant enforcement actions in the near future and litigate issues more aggressively in this area going forward.
The Legal Status Quo
As mentioned, there is no national law explicitly proscribing workplace discrimination based on sexual orientation or gender identity. The language of Title VII only protects individuals on the basis of "race, color, religion, sex, or natural origin." Efforts by LGBT advocates to amend Title VII in order to add sexual orientation, expression, and identity through laws such as The Employment Non-Discrimination Act (ENDA) have consistently failed since 1994. Nevertheless, at least 21 states and more than 166 municipalities have covered this gap by enacting local laws covering sexual orientation, and 16 states have gone as far as including prohibitions on gender identity or expression to protect transgender employees. Some private and public employers have also attempted to cover this void by preemptively adopting internal policies forbidding discrimination on those bases as well.
The EEOC's Efforts
Despite the lack of national uniformity, the EEOC is attempting to provide LGBT workers with a national remedy by broadly interpreting Title VII's prohibition on "sex" discrimination. Contrary to its previous position, the EEOC is now accepting and investigating charges filed by LGBT individuals concerning workplace harassment and discrimination by treating them as sex-based discrimination claims under a "sex stereotyping" theory.
In April 2012, the EEOC issued a landmark ruling concerning the protections of transgender employees under Title VII. In an appeal filed by a transgender woman who was denied a job at a federal agency, the EEOC ruled that complaints of discrimination based on gender identity, change of sex, and/or transgender status are cognizable under Title VII. This ruling was significant because it marked the first time that the EEOC provided direct and universal guidance on transgender protection.
Previously, the EEOC already had concluded that claims by lesbian, gay, and bisexual individuals alleging harassment stated valid sex discrimination claims under Title VII provided the allegations related to sex stereotyping. Consistent with case law, these rulings clarified that impermissible "sex" discrimination included disparate treatment based on "sex stereotyping." They reinforced the notion that employers nationwide could not discriminate against individuals whose actions are inconsistent with traditional notions of gender-specific conduct, because of a person's claimed gender identity or status as transgender, or because of a planned or recent sex change.
The Courts' Views
Courts, however, have been reluctant to extend Title VII protections to discrimination claims based solely on sexual orientation. As such, LGBT individuals cannot currently maintain claims unless their discriminatory treatment was the result of impermissible "sex stereotyping" or "gender nonconformity." This logic is based mostly on the U.S. Supreme Court's 1989 decision in Price Waterhouse v. Hopkins, which found that Title VII barred not just discrimination because of biological sex, but also gender stereotyping - failing to act and appear according to expectations defined by gender. The issue in Price Waterhouse was whether an employer's refusal to promote a female senior manager to partner because she did not act as some partners thought a woman should amounted to "sex" discrimination. The Supreme Court ruled that discrimination for a woman's failure to conform to gender-based expectations violates Title VII. The majority of courts have extended this ruling to cover LGBT employees discriminated against for noncompliance with gender stereotypes or failure to meet stereotypical expectations of femininity or masculinity.
In contrast, courts are split as to whether complaining about discrimination based on sexual orientation - which admittedly is not covered by federal statute - is nevertheless actionable "protected activity" under Title VII. The Ninth Circuit and district courts within the Second Circuit have found that such action is protected, while the Sixth and Seventh Circuits disagree.
What This Means for Employers
Going forward, the EEOC's publicly stated emphasis on LGBT protections will necessarily shape its future enforcement and litigation activities with respect to private employers, especially in states where protections for gender identity or sexual orientation are lacking. One should expect the EEOC to spend significant resources educating the LGBT community about these recent rulings. Chances are this will lead to an increase in charges and more vigorous investigations.
Likewise, the EEOC is poised to scrutinize employer conduct for signs of proscribed "gender stereotyping." Its expansive interpretation of what constitutes sex discrimination will undoubtedly impact the EEOC's evaluation of employers' policies and practices concerning hiring, advancement, harassment, training, dress/appearance standards, restroom access, employee benefits, and employer conduct. To avoid potential legal challenges, employers should ensure that their policies are neutral with respect to sexual orientation, gender identity or expression, and sufficiently prohibit harassing conduct based on sexual preference, gender stereotypes or intolerance. Further, employers should consider planning their potential response to the needs of transgender employees in advance. This preparation could include developing guidelines and procedures for managing the transition process, reevaluating dress codes and bathroom access policies, determining leave, maintaining confidentiality, and providing sensitivity training to coworkers and management in order to increase tolerance and awareness.
Cultivating a work environment of acceptance and respect of LGBT workers will not only help to minimize possible legal liability and a negative public image, but will also help employers attract and retain a more diverse, productive, and qualified workforce.