In my supervisor training sessions, I used to note that Title VII prohibits discrimination based on sex, with a reminder that it applies to both sexes. In recent training sessions, however, I find that section now takes a little longer as I have to cover gender identity and sexual orientation as separate types of sex discrimination. This month has brought two more examples of why employers need to pay more attention in this arena.
First, the Department of Defense, NASA and the US General Services Administration recently issued an interim rule barring their contractors and subcontractors from discriminating on the basis of gender identity or sexual orientation. These agencies are simply following President Obama’s Executive Order 13672, which added sexual orientation and gender identity to the list of protected categories for federal contractors and subcontractors.
Second, litigants continue to file lawsuits based on gender identity discrimination. Earlier this month, Tristan Broussard, a transgender man, filed a sex discrimination claim in a Louisiana federal court against his former employer, First Tower Loan LLC, alleging he was terminated based on his transgender status. Broussard alleges that once the company learned that his driver’s license identified him as a woman, it told him he would be terminated unless he dressed and acted as if he were female. He refused and alleges he was terminated as a result. The company has not yet filed an answer.
What are the takeaways? If you are a federal contractor, update your EEO and harassment policies to be sure they cover these new protected categories. If you are not a federal contractor, consider how you will handle complaints or concerns from employees about discrimination or harassment based on gender identity or sexual orientation. Addressing such complaints, even if they are not clearly covered by federal law, could prevent you from being the next test case.