EEOC steps up efforts to protect against LGBT bias, harassment
by Albert Llosas Barrueco, Esq., Pepper Hamilton LLP
Federal law doesn’t prohibit discrimination against lesbian, gay, bisexual and transgender (LGBT) workers. Instead, LGBT protections are a varied patchwork of judicial and agency interpretations and state and local laws that make discrimination actionable only under specific circumstances. LGBT workers continue to face employment discrimination with relatively few legal protections.
In response, the EEOC has begun an effort to protect LGBT workers’ rights by broadly interpreting Title VII of the Civil Rights Act of 1964. The EEOC’s newly released Strategic Enforcement Plan for 2013-2016 lists “coverage of lesbian, gay, bisexual and transgender individuals under Title VII” as one of its top six national enforcement priorities. Expect the EEOC to take significant enforcement actions soon and litigate issues more aggressively.
The legal status quo
No national law explicitly bans workplace discrimination based on sexual orientation or gender identity. Title VII’s language only protects individuals on the basis of “race, color, religion, sex, or natural origin.” LGBT advocates have tried to amend Title VII to add sexual orientation, expression and identity, but have consistently failed.
Some states and localities partially cover the gap. At least 21 states and more than 166 municipalities have enacted laws covering sexual orientation. Sixteen states prohibit discrimination on the basis of gender identity or expression. Some employers also have policies forbidding such bias.
The EEOC’s efforts
The EEOC Title VII effort to protect LGBT workers relies on a broad definition of sex discrimination, treating harassment and discrimination claims under a “sex stereotyping” theory.
In April 2012, the EEOC issued a landmark ruling concerning the protections of transgender employees under Title VII. In an appeal filed by a transgender woman denied a job at a federal agency, the EEOC ruled that discrimination complaints based on gender identity, change of sex or transgender status are recognized under Title VII. It was the EEOC’s first direct and universal guidance on transgender protection.
Previously, the EEOC had concluded that lesbian, gay, and bisexual individuals alleging harassment stated valid sex discrimination claims under Title VII, provided the allegations related to sex stereotyping. Those rulings reinforced the notion that employers could not discriminate against individuals whose actions were inconsistent with traditional notions of gender-specific conduct, because of a person’s claimed gender identity or status as transgender, or because of a planned or recent sex change.
The courts’ views
Courts, however, have been reluctant to extend Title VII protections to discrimination claims based solely on sexual orientation. LGBT individuals cannot currently succeed in their claims unless their discriminatory treatment resulted from impermissible “sex stereotyping” or “gender nonconformity.”
This logic is based mostly on the U.S. Supreme Court’s 1989 decision in Price Waterhouse v. Hopkins, which found that Title VII barred not just discrimination because of biological sex, but also gender stereotyping—failing to act and appear according to expectations defined by gender. The case hinged on whether an employer’s refusal to promote a female senior manager to partner because she did not act as some partners thought a woman should amounted to “sex” discrimination. The Supreme Court ruled that discrimination for failing to conform to gender-based expectations violates Title VII.
Most courts have extended this ruling to cover LGBT employees discriminated against for noncompliance with gender stereotypes or failure to meet stereotypical expectations of femininity or masculinity.
In contrast, courts are split on whether complaining about discrimination based on sexual orientation is actionable “protected activity” under Title VII. The 9th Circuit and district courts within the 2nd Circuit have found that action is protected, while the 6th and 7th Circuits disagree.
What it means for employers
The EEOC’s new emphasis on LGBT protections will shape its future enforcement and litigation against private employers, especially in states that don’t protect gender identity or sexual orientation. Expect the EEOC to educate the LGBT community about its recent rulings. Also expect more charges and more vigorous investigations.
Other realms that might find closer EEOC scrutiny include policies and practices affecting hiring, advancement, harassment, training, dress/appearance standards, restroom access and employee benefits. The commission will be looking for evidence of gender stereotyping.
Advice: Make sure your policies are neutral with regard to sexual orientation, gender identity and expression, and prohibit harassment based on sexual preference, gender stereotypes or intolerance.
In advance, plan your response to the needs of transgender employees. Develop guidelines and procedures for managing during the gender reassignment process. Issues to consider include dress codes and bathroom access policies, determining leave and maintaining confidentiality. Think about providing sensitivity training to co-workers and supervisors to increase tolerance and awareness.
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Albert Llosas Barrueco is an associate in Pepper Hamilton’s Labor and Employment Practice Group. Contact him at (212) 808-2731 or barruecoa@pepperlaw.com.
