As seen in The Kentucky Bar Association’s Bench & Bar January 2014 issue (Page 16)

Shifts in attitudes and changing social mores impact workplace dynamics in ways that are difficult to measure. In some instances, a change in social customs gives rise to the need for new laws, regulations or policies affecting the employer-employee relationship. The advent of social media illustrates this principle. The increased use of social media by people while at work or to communicate about work has created the need for guidelines about when and how employers can regulate an employee’s use of social media. In other instances, however, changes in the law instigate changes in the workplace. The protections available to lesbian, gay, bisexual and transgender (LGBT) workers is one of those instances. The shift in the law towards recognition of same-sex marriage leads to conversations in the workplace about individual sexuality. As revelation of sexual orientation becomes necessary for some purposes, such as enrolling a same-sex partner or spouse in an employer’s benefit plan, the potential for discrimination increases.

This article explores the current protections available by law for LGBT workers in Kentucky, protections arising from the interpretation of existing law, and a glimpse of what lies ahead.

Fairness Ordinances in Kentucky “Fairness laws” generally protect individuals from discrimination based on sexual orientation and gender identity in employment, housing, and public accommodations. Currently, five jurisdictions in Kentucky have Fairness Ordinances: Louisville/Jefferson County;1 Lexington-Fayette County;2 Covington;3 Vicco; and Frankfort.4 Henderson, Kentucky, passed a Fairness Ordinance in 1999 and repealed it in 2001. Berea’s local government has considered passage of a Fairness Ordinance, and statewide legislation has been introduced in the Kentucky Senate and House.5 A critical feature of the Fairness Ordinances is that enforcement lies with a local entity, usually a Human Rights Commission, and the courts lack jurisdiction over claims arising under the Ordinance. If an employee believes that s/he has been subjected to an adverse employment action or hostile work environment on the basis of sexual orientation or gender identity, the employee may lodge a complaint with the local Human Rights Commission. The Commission has the power to review and investigate the complaint, attempt conciliation, and issue a probable cause finding. The employee cannot, however, pursue the discrimination claim in state or federal court. The Commission is empowered to hold an administrative hearing on the allegations, after it has found probable cause to believe that discrimination has occurred, and to order the same remedies available under the Kentucky Civil Rights Act.6 In jurisdictions with Fairness Ordinances, employers should be cognizant of the local laws and ensure that their handbooks, policies, communications to employees and personnel practices are in compliance.

Application of Existing Non-Discrimination Laws to LGBT Employees

The case law illustrates a gradual expansion of the protections of Title VII of the Civil Rights Act of 1964 to adverse employment actions based on an employee’s non-conformity to gender stereotypes or hostility to transgender or transsexual individuals. In particular, same-sex harassment claims have blurred the distinction between harassment based on sex and harassment based on sexual orientation (real or perceived). A review of recent decisions exhibits the trend to extend Title VII’s prohibition on sex discrimination to discrimination based on sexuality and gender roles.

In 1998, the U.S. Supreme Court held, in Oncale v. Sundowner Offshore Servs., Inc.,7 that same-sex sexual harassment in the workplace is actionable as sex discrimination under Title VII. The Court provided guidance for determining that same-sex harassment is “based on sex,” suggesting that the plaintiff should (1) introduce credible evidence that the harassing conduct is “motivated by sexual desire,” (2) prove that “the harasser is motivated by general hostility to the presence of [people of the plaintiff’s sex] in the workplace,” or (3) introduce “direct comparative evidence about how the alleged harasser treated members of both sexes in a mixed-sex workplace.”8 Noting that its application of Title VII to same-sex harassment went “beyond the principal evil” with which Congress was concerned in passing Title VII to “cover reasonably comparable evils,”9 the Court advised lower courts to give “careful consideration of the social context in which particular behavior occurs and is experienced by its target.”10

The U.S. Courts of Appeal have applied the holding of Oncale in slightly different ways. The Sixth Circuit, for instance, has held that a plaintiff can prove that same-sex harassment is based on sex only through the three methods described in the Oncale decision.11 In Wasek v. Arrow Energy Servs., Inc., the Sixth Circuit held that the plaintiff’s Title VII hostile work environment claim was properly dismissed on summary judgment because the plaintiff did not introduce credible evidence of the alleged harasser’s sexuality and the other methods of proof were unavailable as only men were present in the workplace.12 This restrictive application of Oncale in the face of egregious facts about how the plaintiff was abused by a co-worker prevents one from concluding that the result was influenced by insufficient evidence that the plaintiff was the victim of harassment.13 As noted below, the Fifth Circuit viewed the Wasek decision as a departure from prior Sixth Circuit jurisprudence.14 The Sixth Circuit recognized, prior to Wasek, that other evidentiary theories could support a finding that same-sex harassment constituted discrimination based on sex, in addition to the methods of proof articulated in Oncale.15

A recent decision by the Fifth Circuit provides a different approach. In EEOC v. Boh Bros. Constr. Co., the Fifth Circuit went beyond the methods of proof described in the Oncale decision and held that in same-sex harassment cases, “a plaintiff can satisfy Title VII’s because-of-sex requirement with evidence of a plaintiff’s perceived failure to conform to traditional gender stereotypes.”16 In the Boh Bros. case, the EEOC relied on evidence that the alleged harasser viewed the complainant as effeminate and harassed him for that reason. The court found that a sexual harassment claim could be based on evidence of sex-stereotyping, citing Price Waterhouse v. Hopkins17 as precedent.18 Thus, when the plaintiff can show that the harassment was based on a negative perception of gender non-conforming behaviors or attributes, rather than sexual orientation, the plaintiff may be permitted to proceed with a claim of discrimination based on sex under Title VII.

The theory that claims based on non-conformity to gender stereotypes state a claim for discrimination based on sex under Title VII has gained some traction in cases brought by transgender and transsexual individuals. In Smith v. City of Salem, the Sixth Circuit held that “discrimination against a plaintiff who is a transsexual – and therefore fails to act and/or identify with his or her gender –” is the same as sex stereotyping based on gender non-conforming behavior, which was found to constitute discrimination in Price Waterhouse.19 The EEOC, relying on a line of cases including Smith, has held in a federal-sector administrative proceeding that “intentional discrimination against a transgender individual because that person is transgender is, by definition, discrimination ‘based on . . . sex,’ and such discrimination therefore violates Title VII.”20 Thus, consideration of gender in an employment action, including consideration of whether the employee or applicant meets a gender stereotype, violates Title VII.

While it is clear that a claim of discrimination based solely on sexual orientation is not cognizable under Title VII, state actors may be held liable for sexual orientation discrimination under 42 U.S.C. § 1983. Section 1983 provides a private right of action against a state actor for a violation of one’s constitutional rights. In some instances, the courts have permitted sexual orientation discrimination to be pursued under the Equal Protection Clause, though the available remedies are limited.21 In Stroder v. Commonwealth of Ky. Cabinet for Health & Family Servs.,22 the U.S. District Court for the Western District of Kentucky issued a bench decision finding the state agency liable for terminating Mr. Stroder because of his sexual orientation. The plaintiff demonstrated that his violations of the Cabinet’s Internet Usage Policy were treated differently from “strikingly similar” actions by a heterosexual employee.23 The plaintiff was awarded reinstatement but could not recover back pay and benefits because the state was shielded by Eleventh Amendment immunity.24

Because sexual orientation discrimination is not prohibited by any existing state or federal law in Kentucky, victims of such discrimination have proffered novel theories for seeking redress. For example, in Pedreira v. Ky. Baptist Homes for Children, Inc.,25 a plaintiff whose termination notice stated that “she was fired ‘because her admitted homosexual lifestyle is contrary to Kentucky Baptist Homes for Children core values,’” sought to challenge the termination as religious discrimination in violation of the Kentucky Civil Rights Act.26 The Sixth Circuit noted that discrimination based on religion includes adverse action “because the employee fails to comply with the employer’s religion.”27 The plaintiff argued that “she was terminated because she does not hold KBHC’s religious belief that homosexuality is sinful.”28 The court rejected this theory, finding that the defendant clearly acted based on the plaintiff’s sexuality, not her religious beliefs or non-adherence.29 The court, however, left the door open for future claims by stating that “there may be factual situations in which an employer equates an employee’s sexuality with her religious beliefs or lack thereof.”30

Employees and applicants who are members of the LGBT community have found some protection, depending on the underlying facts and circumstances, pursuant to the general proscription of discrimination based on sex. The case law requires a showing that the decision maker considered sex in issuing an adverse employment action.31 Employers should expect continued development of the law in this area, particularly if Title VII or the Kentucky Civil Rights Act is not amended to include sexual orientation and gender identity as protected bases.

Legislation on the Horizon

As indicated earlier, bills to amend the Kentucky Civil Rights Act to add sexual orientation and gender identity to the list of protected bases have been introduced.32 During the 2013 Regular Session of the Kentucky legislature, these bills died in committee. The prospect of such a bill being passed at the state level appears remote.

At the federal level, momentum is underway to pass the Employment Non-Discrimination Act of 2013 (“ENDA”), which would ban employment discrimination on the basis of sexual orientation and gender identity.33 On November 7, 2013, the Senate passed its version of ENDA by a vote of 64 to 32.34 The companion bill in the House, H.R. 1755, has seen little traction and faces a “steep uphill climb” to passage.35

Conclusion

Employers should address instances of harassment, bullying, threats, ridicule and similar behaviors in the workplace. Moreover, employers should be hesitant to assume that they have no liability to an employee or applicant who is a member of the LGBT community and who is subjected to an adverse employment action or hostile work environment. As illustrated by the cases discussed above, the demarcation between discrimination based on sex and based on sexual orientation or gender identity is fluid. In jurisdictions with Fairness Ordinances and for governmental employers, discrimination based on sexual orientation or gender identity is explicitly prohibited.