September 19, 2017

Workplace discrimination laws evolving

A large technology company has agreed to pay $110,000 to settle a transgender discrimination claim by a former employee, highlighting the evolving workplace discrimination laws affecting LGBT workers.

Even the federal government – the Equal Employment Opportunity Commission (EEOC) and the Department of Justice (DOJ) – is taking opposite views on whether sexual orientation and gender identity are protected under Title VII of the Civil Rights Act of 1964.

In this case, the settlement with Massachusetts Attorney General Maura Healey involves a transgender woman, who was subjected to a hostile work environment because of her sex and gender identity. The former employee also claims she was denied job opportunities and then retaliated against for complaining of discrimination.

In addition to the $60,000 payment to the former employee and $25,000 each to two non-profit organizations, the company will conduct anti-discrimination training for all of its Massachusetts employees. The tech company will also update its anti-discrimination, diversity and inclusion, and gender identity-related policies.

Massachusetts is among 22 states, the District of Columbia and hundreds of municipalities that have enacted laws prohibiting sexual-orientation discrimination. In California, the legislature just passed Senate Bill 396, requiring that employers with 50 or more workers cover gender identity, gender expression and sexual orientation in their sexual harassment training. California employers must also post a notice about transgender rights in a prominent workplace location. 

EEOC and DOJ split on Title VII protections
Meanwhile, on a federal level employment protection for LGBT workers is being challenged.  On one side is the EEOC, the agency responsible for investigating charges of workplace discrimination and harassment. The EEOC has a long-held position that sexual orientation and gender identity discrimination are forms of sex discrimination and are protected under Title VII. On the opposite side is the DOJ. In July, the department unexpectedly filed a brief in a federal court arguing that Title VII does not protect employees from discrimination based on sexual orientation.

While we wait for the courts to decide, the EEOC is speaking out.  In a recent radio interview EEOC Commissioner Chai Feldblum provided some perspective on the “patchwork” of laws prohibiting discrimination against sexual orientation and gender identity. About 6,000 complaints of sexual orientation discrimination have been brought to the EEOC over the last six or seven years, with 3,000 cases currently pending, Feldblum said.

Here are some excerpts from the interview:

Depends on where you live
“Because there is such horrific discrimination against LGBT people in employment, the states have passed laws explicitly prohibiting discrimination against sexual orientation or gender identity, but not all of the states. So it’s completely dependent on where you live, whether you’re going to be protected under that state law.”

“And on the federal level, for years Congress has sought to pass a similar type of explicit law. So people were living in a patchwork of protection. Now there are various agencies and courts that are saying, actually, there shouldn’t be a patchwork because under the federal law, properly understood, every LGBT person is protected under existing federal law.”

Difference of opinion
“It is unfortunate that at the moment, there’s a difference of position being presented to an appellate court in this country from one agency – the EEOC – and another agency – the DOJ. However, this is a contested legal issue. The EEOC is a bipartisan commission, with both Democratic and Republican commissioners, who have concluded that sex discrimination includes discrimination against gay people, as a matter of commonsense.”

Supreme Court will rule in favor
“I am confident that in the end, LGBT people will be covered under employment law.  The most likely way that such coverage will come about is that the Supreme Court will rule that existing sex discrimination law covers LGBT people. However, until and unless the Supreme Court tells us we are wrong at the EEOC, then obviously the EEOC will continue to do its work.”

Traliant Insight
As the courts debate on whether Title VII protects LGBT employees from workplace discrimination, successful organizations understand the benefits of creating and reinforcing a culture of respect, where all employees feel valued and appreciated. This includes regularly reviewing and updating your anti-discrimination and harassment training, policies and code of conduct to ensure employees know how to  recognize and respond to diversity and inclusion issues, including  gender identity, gender expression, sexual orientation and unconscious bias.  

For more information, visit our pages on EEOC Compliance and Preventing Discrimination and Harassment.