In an interview with The New York Times published last month, U.S. Attorney General Eric H. Holder Jr. said that state attorneys general are not obligated to defend state legislation they consider discriminatory or violative of constitutional protections. Attorney General Holder’s comments come in the face of six state attorneys general who refused to defend their states’ same-sex marriage bans from challenge. Attorney General Holder himself previously refused to defend the constitutionality of the provisions of the federal Defense of Marriage Act (“DOMA”) that barred the federal government from recognizing same-sex marriages performed in states where such marriages are lawfully recognized. That portion of DOMA was struck down by the Supreme Court in United States v. Windsor in June 2013.
Lower courts similarly have expanded the reach of established federal law to recognize rights and protections for LGBT individuals. While federal anti-discrimination law does not extend protection to individuals discriminated against because of their sexual orientation or gender identity, the EEOC and the majority of federal circuits have recognized Title VII claims based on a theory of gender stereotyping. Under this theory, the courts recognize a claim where an employee is subject to discrimination or harassment for failing to conform to traditional gender norms and stereotypes.
Notably, last year in EEOC v. Boh Brothers Construction, an en banc panel in the fairly conservative Fifth Circuit reinstated a jury verdict finding that an ironworker was subject to same-sex harassment based on gender stereotypes when his supervisor subjected him to verbal abuse, sexual gestures, and exposing himself. The EEOC presented evidence at trial that the ironworker’s supervisor harassed him because he thought he was feminine, “less than manly,” and did not conform to the gender stereotypes of a typical “rough ironworker.” On February 27, 2014, the EEOC issued a press release stating that the employer agreed to a consent judgment requiring it to pay $125,000 in damages. The Boh Brothers decision opens employers up to more same-sex harassment litigation and underscores the importance of having defined harassment policies and conducting sensitivity training in the workplace.
LGBT rights in the workplace have also been greatly expanded through legislative efforts at the state and local levels. Presently, 21 states and the District of Columbia extend non-discrimination protection to employees and applicants based on sexual orientation and/or gender identity. (Although a proposal to amend federal anti-discrimination law to protect LGBT individuals has been introduced in every Congress since 1994, it has never been able to make it through both houses.)
The momentum in favor of LGBT rights in the workplace is on the rise as state and local governments are extending protections to same-sex spouses and couples under laws sick leave and child leave laws. We will continue to update you as there are developments in this area.