There have been many news stories over the past couple of years about sexual orientation and gender identity discrimination in the workplace and in schools. Yet, in none of those stories is it ever made clear what the actual current state of the law is. Frankly, that is because there is no clear answer – it depends on whom you ask, where you are geographically located, and whether you work for a public or private employer. This deluge of seemingly conflicting court decisions and government agency orders is unlikely to end any time soon, which can make it difficult to stay abreast of the constantly changing landscape.
The EEOC’s Priorities Are Likely to Remain the Same: LGBTQ Discrimination is Illegal
The new presidential administration has brought many changes in policy across all governmental agencies. However, senior representatives of the U.S. Equal Employment Opportunity Commission (EEOC) have stressed that the agency’s strategic enforcement plan (SEP) for 2017-2021, which was released in October 2016, will remain the guidepost for the types of cases and issues on which the EEOC will focus – at least until they are instructed otherwise by the new administration. One of the areas identified in the SEP was emerging and developing issues, which specifically included the active enforcement of LGBTQ protections in the workplace.
The EEOC has interpreted Title VII’s prohibition against “sex” discrimination as also prohibiting discrimination against employees who identify as LGBTQ. Some appeals courts have accepted the EEOC’s interpretation and given it deference, while others have not. In May 2016, for example, the United States District Court for the Eastern District of Virginia (Richmond) very clearly held that the EEOC’s guidance is not binding on the courts and refused to adopt the EEOC’s interpretation of the law. The Court found that whether gender identity and sexual orientation are covered by Title VII is a matter for Congress to decide; not the courts.
Executive Order for Government Contractors: LGBTQ Discrimination is Illegal
On July 21, 2014, then-President Obama signed Executive Order 13672 which provided that any company that is a contractor or subcontractor of the federal government is prohibited from discriminating against its employees on the basis of sexual orientation and gender identity. The Order also requires covered employers to add sexual orientation and gender identity to their EEO policies and postings. This Executive Order went into effect on April 8, 2015. While an Executive Order of one President (which is executed without the input of Congress) can be undone with the flick of a pen of a subsequent President; so far, President Trump has not given any indication that he intends to rescind EO13672.
The Continuing Divide of the Courts: No Clear Answer
There are simply no clear answers in the U.S. judicial system. So, if employers were hoping that 2017 would bring clarification from the courts regarding protections for the LGBTQ community under Title VII, this seems unlikely. The last few weeks have showed us this.
Most recently, the 2nd Circuit Court of Appeals held en banc that employment discrimination based on sexual orientation is almost certainly prohibited under Title VII’s ban on sex discrimination. The claims brought in the case Christiansen v. Omnicom Group stemmed from an HIV-positive gay man experiencing repeated harassment and taunting. For example, “Christiansen’s supervisor also made remarks about the connection between effeminacy, sexual orientation, and HIV status.” The Court held that Christiansen’s harassment qualified as sex stereotyping, which the Supreme Court has previously acknowledged is a form of sex discrimination.
The 11th Circuit Court of Appeals (which is the federal appellate court for Alabama, Georgia, and Florida) put an end to a former Georgia Regional Hospital security guard’s lawsuit against the hospital, in which she claimed she was harassed because she is a lesbian and did not conform with gender norms and stereotypes. Very succinctly, the Court in Jameka K. Evans v. Georgia Regional Hospital, Charles Moss, et al. held: “[T]here is no sexual orientation action under Title VII.” The court did clarify, though, that the employee could bring a claim that alleges discrimination based on gender nonconformity – basically a sex stereotyping analysis, but the Court did not evaluate the employee’s claim under that legal premise. This case will likely be headed for review by the entire panel of appellate judges, who may uphold or overturn the ruling.
The decisions by the 2nd and 11th Circuits will be just one of a handful of decisions that will be issued in 2017 to address employees’ protections against sexual orientation discrimination under Title VII. Rulings by the 7th Circuit Court of Appeals in Chicago in a case addressing this very issue is expected soon, and may very well create a circuit split that will force the United States Supreme Court to take up the issue of whether gender identity and sexual orientation are covered by Title VII.
State and Local Laws May Afford Protections to LGBTQ Employees
Employers also need to be aware that the states and localities in which their companies operate may have enacted employment non-discrimination laws that specifically cover or address sexual orientation and gender identity. By the end of 2016, approximately twenty-two states and the District of Columbia, as well as approximately 200 municipalities, have adopted laws covering, to varying degrees, employees who identify as LGBTQ.
Virginia state law does not currently address discrimination based on gender identity or sexual orientation in private sector employment. Nevertheless, Arlington County and the City of Alexandria, for example, prohibit discrimination in employment for sexual orientation. Further, on January 11, 2014, Governor Terry McAuliffe signed an executive order that prohibited employment discrimination for sexual orientation and gender identity in state offices. In addition, in an Attorney General’s Opinion Letter dated May 10, 2016, the Virginia Attorney General opined that, while the Virginia Human Rights Act does not specifically prohibit sexual orientation and gender identity discrimination, it was intended to track federal law. As such, he opined that, if federal law develops such that sexual orientation and gender identity are covered by Title VII, Virginia will follow.
Practical Issues for Human Resources Professionals
Despite the uncertainty of the protections afforded to employees who identify as LGBTQ under Title VII, many employers still enact and enforce company policies that prohibit discrimination against employees on any basis covered by Title VII, as well as sexual orientation and gender identity.
In sum, although the law on gender identity and sexual orientation discrimination and harassment is still quite fluid in the judiciary, because the EEOC and other federal and state government agencies have taken the position that LGBTQ employees are protected from discrimination by Title VII, Human Resources professionals should consider reviewing their company EEO policies and analyzing whether those policies offer adequate protection for LGBTQ employees.
