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Posted: June 06, 2013

Employers and LGBT equality

Here's what you need to know

Nathan Schacht

The world has watched with keen interest how the treatment of gay, lesbian, bisexual and transgender (LGBT) people has taken center stage in politics, entertainment and daily life. Employers, too, have kept a watchful eye on how the trend towards LGBT equality may affect their employees, policies or bottom line.

This attention is well-deserved. For years, LGBT individuals have worked under a small patchwork of protections. In recent years, however, public opinion supporting equal rights and protection for LGBT individuals is at an all-time high.

When Jason Collins became the first gay male athlete actively playing a major American team sport to “come out,” he received tremendous support. This increase in support includes protections in the workplace.

LGBT-related employment laws are developing at a brisk pace. In addition, the Equal Employment Opportunity Commission (EEOC), the agency that enforces federal anti-discrimination laws, has endorsed a plan focused on increasing efforts for fighting LGBT-related employment discrimination. And with President Obama proposing an increased budget for the EEOC, employers should expect even more aggressive enforcement.

Despite these developments, many employers remain misinformed about these laws, and polls show that many Americans believe sexual orientation discrimination is completely prohibited. So, what are employers missing and what do they need to know?

To start, federal law does not currently prohibit employment discrimination based on sexual orientation, i.e., being gay, lesbian or bisexual. Twenty-one states, including Colorado and the District of Columbia do, however, prohibit sexual orientation discrimination. Many localities also enforce similar protections. These protections (or lack thereof), however, are subject to change, and employers must remain vigilant of pending and potential legislation.

The federal government and many states and localities are pushing for increased protections. For example, the Employment Non-Discrimination Act (“ENDA”), which, generally, would prohibit discrimination based on sexual orientation and gender identity at a federal level, was recently introduced in the current session of Congress.

In addition, the Job Protection and Civil Rights Enforcement Act of 2013, recently introduced in Colorado, seeks to increase the claims and damages recoverable for violations of Colorado’s prohibitions on employment discrimination, including on the basis of sexual orientation. Given the societal shift in support of LGBT equality, the trend towards increased protections based on sexual orientation will continue.

What about transgender workers? Unlike with sexual orientation, many employers believe that employment discrimination based on an individual’s gender identity is not unlawful. Even the New Yorker in a recent article stated that no federal law offers protection to transgender people from discrimination in the workplace. That pronouncement, however, is technically incorrect and the issue is more complex.

Although federal law does not specifically include protections for gender identity, including one’s transgender status (something ENDA seeks to rectify), the federal courts and the EEOC have slowly carved out protections for transgender workers based on Title VII’s protection of “sex.”  Although courts have generally extended this protection based on one’s gender expression (i.e., discriminating against an employee because he/she does not act how the employer thinks a man/woman should), courts appear inclined to extend protections to transgender individuals specifically on the basis of their transgender status.

In 2012, the EEOC held that discriminating against a transgender individual because of their transgender status is, in fact, unlawfully discriminating against that person on the basis of their sex, a protected category. According to the EEOC, one’s transgender status is a protected category, and employers should expect this to be battled out in litigation with courts leaning toward providing increased protections (albeit, different jurisdictions must be handled accordingly).

In addition, 14 states, including Colorado and the District of Columbia, as well as numerous local governments prohibit discrimination based on one’s gender identity, including transgender status. Protections do exist, then, for transgender workers and, as with sexual orientation, the EEOC is expected to vigorously investigate and pursue allegations of gender identity discrimination.

What are employers to do? Despite the complex patchwork of laws, the answer is simple.  Protections for LGBT workers will only expand and these increased protections will likely pass in the near future. And more businesses will understand that providing equal employment opportunities/protections to LGBT workers is good for employee morale, good for business and the right thing to do.

Smart employers will review their policies and procedures and consult their legal advisors to ensure that they accurately reflect current law, including protections for LGBT employees. They will also provide training for employees and managers. Those who do not will inevitably fall behind their competitors in this still unpredictable market.

Nathan Schacht is an associate with BakerHostetler. His practice focuses on employment litigation and counseling with an emphasis on providing guidance to employers. Reach him at nschacht@bakerlaw.com.

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