Last week on The EmpLAWyerologist we learned that federal affirmative action laws now protect workers against sexual orientation and gender identity discrimination. Two weeks ago we learned, perhaps to the surprise of many, that Title VII of the Civil Rights Act of 1964 does not contain explicit provisions that include such protections, that the federal circuit courts of appeals are split on that question, and that the US Supreme Court has yet to weigh in. We also know that even with significant support for the Employment Nondiscrimination Act (ENDA) in Congress, there are still not enough votes to pass it. What happens when an issue of this magnitude does not lead to passage of a federal law? States and localities, wishing to address the issue faster, pass their own laws. Join The EmpLAWyerologist after the jump to learn more…
As of October 2014 18 states and the District of Columbia have laws prohibiting discrimination by both public and private employers based on sexual orientation and gender identity; three states prohibit discrimination based on sexual orientation only. Before we go further, we should get clear on one thing: many people assume that transgenders are a sub-set of those who identify as homosexual.: sexual orientation and gender identity are not the same. If you are someone looking to either facilitate a change either in law or in workplace policy, it is very important to understand the distinction. Not understanding the distinction could lead to the very allegations of discrimination you would be trying to avoid.
OK, back to our topic: As of today, the following states prohibit discrimination by both public and private employers based on both sexual orientation and gender identity: California, Colorado, Connecticut, Delaware, District of Columbia, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Jersey, New Mexico, Nevada, Oregon, Rhode Island, Vermont and Washington. Typically these laws will ban discrimination in employment, housing and public places. In addition, state courts, commissions, agencies and attorneys general in New York and Florida have interpreted their existing anti-discrimination laws to include some protection against transgender individuals. New York, New Hampshire and Wisconsin prohibit discrimination based on sexual orientation only.
Before we move on, it is important to note that if you employ people in one of the aforementioned states, you need to consult with competent employment counsel about your state’s laws. Why can’t you just say “OK, I can’t discriminate, so I’ll update my existing policy to include sexual orientation and gender identity as protected classes, and move on”? You can, and while each state’s laws may have essentially the same intentions, they may not say exactly the same thing. Sometimes, as the popular saying goes, “The devil is in the details”. For example, some states might specify a minimum number of employees the employer must employ before the law applies to them. One state’s minimum may be lower than another state’s. That will matter if you employ people in more than one state. Remember, if you have employees in multiple states, the employment laws of each of those states will apply to you and your employment operations. Also, each statute will have its own definition of terms that you think are otherwise commonsense, but the statute’s definition will vary. If you base your practices on what you believe to be commonsense without either becoming familiar with or consulting employment counsel who is familiar with the actual law, you may be missing something crucial–and that can come back to haunt you. Unfortunately, the law and commonsense do not always coincide.
In states such as Indiana, Kansas, Kentucky, Michigan, New York and Pennsylvania, where the Legislature has not passed relevant anti-discrimination statutes, public entities are prohibited from engaging in such discrimination. Why only public entities. Why pass such limited laws? In these states these prohibitions are enacted by the governor signing an Executive Order, which works pretty much the same way as the President doing so on the federal level. (I talked about that here in last week’s post.) The governor can issue an Executive Order as to how most government agencies operate and it has the effect of law. All of the states that have this type of prohibition do not have actual statutes passed by their legislatures at this time. (Maryland also had these same prohibitions, but now has an actual law on the books that covers private and public employers.)
Suppose you employ people in a state with no statute or executive order banning sexual orientation or gender identity discrimination. Are you off the hook? Not necessarily. As of today, over 160 cities and counties have lost patience not only with Congress, but also with their State Legislatures and have passed local ordinances banning such discrimination. Here are just some of the cities that have done so: Atlanta, Boise, Buffalo, Cincinnati, Dallas, Indianapolis, Kansas City, Louisville, Nashville, New Orléans, and Pittsburgh. There are also a number of other localities with such legislation pending.
As you can see, the chances of you being impacted by some legislation or court cases that compel you to re-visit how you treat your LGBT employees and applicants are increasing. What steps should you at least be considering in order to stay ahead of the curve–or at least out of trouble? We will cover that when I tie it all together in two weeks. First we will be looking at other considerations, such as the ADA and other points may have an impact in this area–next week, of course! Until then, Happy Chanukah to those who celebrate it, don’t overshop if you’re preparing for Xmas, and good luck to those considering New Years’ Resolutions!
If you or your company would like to learn more about co-employment and minimizing joint liability, click here to download my webinar on Joint Employment, which aired at 1 p.m EST Tuesday November 25, 2014.
Disclaimer: This post’s contents are for informational purposes only, are not legal advice and do not create an attorney-client relationship. Always consult with competent employment counsel on any issues discussed here.
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