It’s been a busy few weeks for developments in the area of LGBT rights since the Supreme Court’s decision in King v. Burwell , 576 U.S. ___ (2015).
- The “Equality Act” – Yesterday, the House and Senate introduced federal legislation to extend job protections to gay, lesbian and transgender workers. As of now, only 19 states have laws prohibiting such discrimination, so this would be a significant change in the law in those states which are not among that group. Interestingly, the new bill specifies that the Religious Freedom Restoration Act cannot be used to “permit” discrimination against LGBT workers. This likely is the result of recent attempts by certain businesses to use religious freedom as an excuse to deny service to gay and lesbian customers. Many large companies as well as legislators from both parties have endorsed this legislation, so the political wind certainly seems to favor its passage.
- On Friday July 17, the EEOC issued a decision confirming its position that discrimination based on sexual orientation is prohibited under Title VII. In this most recent case, an air traffic controller complained that he was not promoted to a managerial position due to his sexual orientation. The agency had previously dismissed his complaint as time–barred, but reversed that decision in this most recent ruling. In so doing, it confirmed its view that sexual orientation discrimination is “associational discrimination on the basis of sex.” The ACLU, in the wake of this ruling, issued a statement praising the decision, but further stated that this underscores the need for comprehensive federal legislation protecting gay and transgender employees from job discrimination.
It is not clear whether the courts will agree with the EEOC, but this is certainly a signal of a growing trend in favor of broader employment rights for LGBT workers. In fact, given the current political climate, the passage of federal legislation seems likely, as even the more conservative members of the federal legislature seem to sense that the tide has turned overwhelmingly in favor the expanding the protections afforded to the LGBT population.
- Also last week, a federal judge in Oklahoma found that a transgender professor at Oklahoma State University could pursue a Title VII claim against the university based upon the theory that she was discriminated against based on her “presented gender.” The Department of Justice (DOJ) sued the university in March, claiming that the professor was denied tenure because she did not conform to gender stereotypes and then was the victim of retaliation after she complained. The professor, Dr. Rachel Tudor, then filed an intervener complaint to join the DOJ lawsuit. The District Court most recently denied a motion to dismiss Tudor’s complaint, finding that she had sufficiently pled a claim under Title VII and that the actions Defendants took against her were “based upon their dislike of her presented gender.” Dr. Tudor identified as a man when she was hired in 2004, but began presenting as a woman in 2007. She was denied tenure in 2009. Among her allegations she claimed that she was “forced” to use the single–sex disabled restroom, and warned not to wear short skirts. She also alleged that one VP told her that being transgender was a “grave offense to his religious sensibilities.” The court found that the allegations that Tudor was harassed “because she was a female, yet Defendants regarded her as male,” were also sufficient to support a discrimination and harassment claim under Title VII.
- And finally, last week a class action was filed against Wal-Mart by a proposed class of LGBT employees – alleging that the company had discriminated against them in its benefits packages. The class is represented by the Gay & Lesbian Advocates & Defenders and the Washington Lawyers Committee For Civil Rights. The plaintiff, a Wal-Mart employee, claims that her same sex spouse was diagnosed with cancer in 2012. Since she was not covered by Wal-Mart’s benefit plan, the couple incurred over $150,000 in uncovered medical expenses. At the time, they were legally married in Massachusetts. Interestingly, Wal-Mart changed its policy to cover same sex spouses in 2014. The plaintiff’s theory is that Wal-Mart violated title VII by failing to cover same-sex spouses prior to that date, using the rationale adopted by the Supreme Court in the King case – that same sex marriage is a right.
The proposed legislation and these new cases are a further illustration of what we see as a new era of expanding activism and broader LGBT rights in the workplace. This underscores the importance of training and educating your workforce, especially your front line managers and executive staff. All of your employees, but especially those who have the responsibility to oversee and discipline others, must be made to understand that, even if they harbor biases or are “against” the LGBT lifestyle, they cannot allow such biases to invade the workplace. In short, LGBT workers – like the rest of your employees – should be judged based on their performance, and not on their lifestyle.