During 2017, there have been a number of movements related to LGBT rights. The information below highlights some of the latest employment-related developments.
On January 31, 2017, President Trump expressed support for LGBT rights and vowed to leave intact President Obama’s LGBT Executive Order (EO 13672), protecting rights for individuals on the basis of gender identity and sexual orientation. Specifically, EO 13672 protects applicants and employees from anti-LGBTQ workplace discrimination while applying to work for or working for covered federal contractors. This includes providing equal bathroom access to applicants and employees based on gender identity. It remains in effect for federal contractors subject to EO 11246.
On April 4, 2017, the Chicago-based 7th Circuit Court of Appeals—which includes Wisconsin and Illinois—in a groundbreaking ruling by a federal appellate court, found that discrimination based on sexual orientation is covered by Title VII.
Historically, many claims brought under Title VII of the Civil Rights Act of 1964 alleging discrimination on the basis of sexual orientation have been dismissed on the grounds that Title VII does not identify sexual orientation as a protected category. However, recently the EEOC issued guidance stating that discrimination on the basis of sexual orientation and gender identity can be a form of sex discrimination.
Some examples of LGBT-related claims that the EEOC views as unlawful sex discrimination include:
- Failing to hire an applicant because she is a transgender woman.
- Harassing or firing an employee because of his or her sexual orientation or if he or she is planning or has made a gender transition.
- Denying an employee equal access to a common restroom corresponding to the employee's gender identity.
- Discriminating in terms, conditions, or privileges of employment, such as providing a lower salary to an employee because of sexual orientation, or denying spousal health insurance benefits to a female employee because her legal spouse is a woman.
On May 2, 2017, the Equality Act was re-introduced in the U.S. House or Representatives. This legislation was originally introduced in 2015, but the bill never made it out of committee. The Equality Act would ensure that the same protections already extended to other protected classes (i.e., race, sex, age, disability, etc.) are equally available to lesbian, gay, bisexual, and transgender individuals. The legislation would specifically amend existing federal civil rights laws to explicitly prohibit discrimination based on sexual orientation and gender identity in education, employment, housing, credit, federal jury service, public accommodations, and the use of federal funds.
Key Takeaway for Members
Members should remain aware of local and state laws in the locations where they operate. Many state and local governments already provide protection for applicants and employees from discrimination based on sexual orientation and/or gender identity. MRA’s core four member states of Iowa, Wisconsin, Minnesota, and Illinois have sexual orientation as a protected class state statute. Thus, many of our members are already bound by state/local LGBTQ anti-discrimination laws. Irrespective of federal, state, and local protections, it remains good practice to provide internal policies and procedures prohibiting LGBTQ discrimination and providing a complaint and investigation procedure when such discrimination is alleged to have occurred.
One thing is certain, however, equal protection laws that apply to the workplace are changing. It remains to be seen how the EEOC, DOL, OFCCP, the Departments of Justice and Education, and the courts will interpret the statutes to provide protections to the transgender community.
MRA members who need assistance with transgender questions in the workplace can download our Transgender Workplace Transition Plan and Transgender Transition HR Checklist from our HR Resource Center.
Source: Michael Hyatt, HR Government Affairs Director, MRA – The Management Association; EEOC.gov