Here at the EmpLAWyerologist we have been getting familiar with laws and regulations that do –and do not–protect the LGBT population in the workplace. Without trying to sound like a broken record, there is no federal statute that explicitly protects against sexual orientation and/or gender identity discrimination. That said, we have gotten unmistakable messages from the President, certain federal agencies, federal appellate courts, the ADA, the FMLA and states and localities that have provided protections albeit through the back door. There are so many angles, we could get dizzy trying to look at all of them at once. How is an employer to get a handle on this topic? How do we tie it all together? Start by joining The EmpLAWyerologist after the jump …
While we know that an employer who discriminates against an employee based on his or her race, gender, religion, or national origin could face –and lose–a lawsuit under Title VII, that is at best questionable in the case of sexual orientation or gender identity discrimination. (Click here for review.) That does not mean that an employer need not worry about a lawsuit under Title VII, however. The EEOC and a number of the federal circuit courts of appeals interpret Title VII somewhat broadly and take the position that it does in fact protect against these types of discrimination. Relying on Title VII’s lack of explicit prohibitions is still a gamble, then. Even if you happen to be located within a circuit that does not agree with the EEOC, you are still spending time, money and other resources to defend such a charge and lawsuit up until that point, –you probably are still not off the hook. Let’s look further to see why.
Do you do at least $10.000 worth of business each year with a federal government agency? If yes, Affirmative Action regulations that now prohibit you from sexual orientation/gender identity discrimination may result in some attention from the Office of Federal Contract Compliance Programs (OFCCP) if an employee or applicant files a complaint. Maybe you don’t have a contract with a federal government agency, but one of your clients does. If so, you may be a federal sub-contractor, which, again, subjects you to the new Affirmative Action requirements.
Suppose you employ people in a federal appellate jurisdiction that does not interpret Title VII as protecting the LGBT community from discrimination, and you are neither a federal contractor or sub-contractor. You are still not off the hook, because you may be in a state or locality that that has passed its own anti-discrimination laws that will apply here. What if you don’t? Guess what? Just because your state and/or locality do not have such laws now, doesn’t mean they won’t. Even without that, you still have some other hurdles you may need to clear.
Last week we saw how the ADA and the FMLA may act to prohibit certain discriminatory treatment of an employee based on his or her sexual orientation or gender identity. For example, if an employee announces to you that s/he is about to undergo gender re-assignment surgery, s/he may be entitled to time off under the FMLA. If you deny him or her that time, you may be defending a claim for FMLA violation. What if s/he suffers from gender dysphoria and based on his or her symptoms s/he may request some type of accommodation? If you refuse the request you may have to face an ADA-based discrimination lawsuit.
Add to all of the above that more federal government agencies such as the Department of Justice, and even the military are stepping in to enact their own prohibitions. Congress has not given up on passing ENDA either. If we view all of these developments in their totality, here is what we get:
Just as the cause of addressing gender, racial, national origin, religious, age and disability discrimination did not go away when many tried to ignore them, neither will this one. If anything it is gaining momentum. States, localities, federal government agencies, the EEOC and federal appellate courts taking a stand against sexual orientation and gender identity discrimination and, in certain cases, interpreting existing law in accordance with that stand, places some not-so-subtle pressure on the US Supreme Court in the future to hear an appeal on the issue and explicitly include such prohibitions in Title VII. These developments also place some not-so-subtle pressure on Congress to pass ENDA. Of course if ENDA passes, the US Supreme Court need not hear a Title VII appeal. Conversely, if the Supreme Court decides the issue, Congress need not worry about passing ENDA. Who will act first? It stands to reason one of them will act. We’ll have to wait and see. Until then, employers can still be caught in the crosshairs of state and local laws, federal Affirmative Action requirements, the EEOC, a federal circuit court of appeals, the ADA or the FMLA. In other words. employers still have some choppy waters to navigate. So what’s an employer to do? Here are some starting points:
- Review your employee handbooks, policies and procedures and your training materials. If there is no consideration of the LGBT population, consider revising, and consider including protections against sexual orientation and gender identity discrimination.
- Train your management and staff. In particular your H.R. management and staff, and diversity officers, if any are your most appropriate starting points.
- Review your policies and procedures with respect to medical/disability leave. In the past how have you handled issues related to LGBT workers? What can you do differently to avoid any pitfalls?
- As always, speak with your friendly employment counsel. To many of you this may be new territory. Do not try to navigate it on your own.
Next week, in time for the start of a new calendar year, let’s see where the Affordable Care Act and the Employer Mandate are holding. See you then and Happy 2015!
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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