Ever since Ann Hopkins was first told she wasn’t feminine enough, there has been a growing awareness of discrimination against individuals on the basis of sexual orientation and/or gender identity. Although these specific categories are not explicitly protected by Title VII, proposed legislation along with recent administrative and federal court decisions (which follow loosely on the heels of the Supreme Court’s ruling in United States v. Windsor) signal a trend toward formal protection against this type of discrimination in the workplace.

Title VII Doesn’t Protect Sexual Orientation & Gender Identity…Or Does It?

According to the Equal Employment Opportunity Commission (EEOC), it does. On August 13, 2013 the EEOC, Office of Federal Operations (OFO) issued its decision inCouch v. Department of Energy, EEOC Appeal No. 0120131136, finding that discrimination on the basis of perceived sexual orientation is covered under Title VII. The OFO concluded that “Title VII’s prohibition on the basis of sex includes discrimination on the basis of ‘gender’ . . . [and] fail[ure] to conform to gender-based expectations.”

By way of background, Mr. Couch alleged that during his time with the federal government he had been subjected to various forms of sex-based harassment, including offensive language, defacement of his belongings, and explicit gay and lesbian magazines left in his agency vehicle. The OFO decision connected the offensive, anti-homosexual language with sex discrimination by noting that “the words ‘f-g’ and ‘f—ot’ are offensive, insulting, and degrading sex-based epithets historically used when a person is displaying their belief that a male is not as masculine or as manly as they are.”  That link provided the necessary basis to impose liability for Mr. Couch’s alleged sex discrimination.

Although that EEOC decision only provides protection to federal workers, just last month, the Fifth Circuit (en banc) adopted a similar analysis of the gender stereotyping of a private employee.  In that case, the court determined that an employee who was harassed because he was not considered “manly enough” had established a claim for sex-based harassment under Title VII. For a complete analysis of that decision by Seyfarth’s Workplace Class Action blog, click here.

While this issue seems ripe for further litigation, protecting employees from discrimination on the basis of sexual orientation and gender identity might not be just a semantic exercise much longer.

Will New Legislation Finally Pass To Protect Sexual Orientation & Gender Identity?

Currently, both the Senate and House have versions of the Employment Non-Discrimination Act (ENDA) sitting before them. The proposed law would formally prohibit employment discrimination on the basis of an individual’s actual or perceived sexual orientation or gender identity.

While somewhat more common at the state and local level, protection of sexual orientation and gender identity by the federal government has been unsuccessfully pursued for nearly two decades. In fact, ENDA legislation has been introduced nearly every year since 1994. Notably, the recent momentum created by Windsor— and an increasing number of states allowing same-sex marriage — may give ENDA legislation new life.

The bill is expected to pass easily through the Senate, but ENDA may meet more resistance in the GOP-dominated House.  However, several aspects of the bill might give interested Republicans the necessary political traction to support the proposed law.  For example, both versions would limit the law to disparate treatment claims, exempt religious organizations and the military, and prohibit the EEOC from requiring employers to collect statistics about relevant workforce demographics.

A Senate vote on ENDA could happen as early as this month, and the Employment Law Lookout will continue to monitor the progress of this legislation.

What Does This Mean For Employers?

Regardless of whether it’s via Title VII’s current language or through new legislation, employers should be aware that the federal trend appears to be in favor of protecting sexual orientation and gender identity in the workplace. Furthermore, with public opinion easing — if not downright shifting — on issues like same-sex marriage, prohibitions on workplace discrimination involving sexual orientation and gender identity seem poised to follow.

Such protection raises the stakes for employers by potentially creating new vulnerabilities ripe for charges and lawsuits. While it remains to be seen whether this change would actually result in increased litigation, employers would be wise to think proactively about their existing policies. For example:

  • Check for any applicable state and local discrimination laws that may already protect sexual orientation and/or gender identity and modify your existing policies where necessary.
  • Consider generally whether to amend your existing discrimination policy to include sexual orientation and gender identity.
  • Train (or re-train) your managers, supervisors, and employees to explain any enacted changes to the discrimination policy.
  • Emphasize the importance of your internal complaint procedures and investigations for any alleged policy violations.

By anticipating this predicted change in anti-discrimination laws — or their interpretation — employers can bolster their continuing efforts toward equal opportunity for all employees.