LGBTQ Issues in the Workplace
The rights of Lesbian, Gay, Bi-sexual, and Transgender (“LGBT”) have become a “CNN Breaking News” topic in today’s America. Many federal and state courts have analyzed many of the same-sex marriage bans which have been enacted in the various states – often with contradictory conclusions. Even the U.S. Supreme Court has weighed in on the issue in U.S. v. Windsor – the Defense of Marriage Act decision. Cities, including the Cities of Dallas (2002), San Antonio (2013), Austin (1992), Fort Worth (2009), El Paso (2003), and Houston (2014), have passed ordinances that have varying levels of protection for LGBT individuals based on either sexual orientation, gender identity, or transgender status.
What all of this means is an almost ever-changing legal and political landscape related to LGBT individuals. Employers with operations in multiple cities and states have heightened exposure to discrimination risks because of the differing federal, state, and local laws related to LGBT employees. As HR professionals charged with drafting policies compliant with current law, creating healthy corporate cultures, and finding benefit plans for all employees, keeping current with the state of the law on a federal, state, and local level is imperative.
Employment Discrimination Against LGBT Persons – State of the Law
As a baseline, it is important to know which jurisdictions have enacted protections for LGBT individuals. The Human Rights Campaign has compiled a comprehensive list of States with some measure of protection from discrimination for LGBT employees (see Figure 1 below). This is especially important for companies with multi-state operations.
Title VII Issues
Title VII of Civil Rights Act of 1964 provides protection for employees from discrimination “with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” In the past, courts have narrowly defined the term “sex” using the rationale that Congress only had traditional notions of the term in mind when it passed Title VII. As a result, sexual orientation and other sexual minorities do not enjoy much protection under Title VII.
However, the Supreme Court granted some relief for employees in Price Waterhouse v. Hopkins. In the Price Waterhouse, Ann Hopkins was rejected for partnership because her employer decided she was too masculine and needed to “walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry.” In ruling for Ms. Hopkins, the Court ruled that “in forbidding employers to discriminate against individuals because of their sex, Congress intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes.” Using this concept of gender stereotyping has resulted in mixed verdicts for plaintiffs.
LGBT plaintiffs have had the most success related claims under the analysis laid out in Price Waterhouse. For example, courts have determined:
- Plaintiff’s allegations constituted a claim of sexual harassment, even though such harassment was not motivated by hostility toward his sexual orientation.
- A link between a plaintiff’s sexual orientation and nonconformity with gender stereotypes. In this case the court stated, “[S]exual orientation harassment is often, if not always, motivated by a desire to enforce heterosexually-defined gender norms.”
- A cause of action for a lesbian plaintiff based on her supervisor’s disciplinary actions which were allegedly based on the supervisor’s bias against gays and lesbians. In this instance, the court reasoned the plaintiff would not have been fired if she were man dating a woman, instead of a woman dating a woman.
However, gender conforming policies may meet judicial scrutiny if the policies are non-discriminatory. For example, the Ninth Circuit ruled against a plaintiff who was terminated for not following a policy which required her to wear foundation or powder, blush, lipstick and mascara. The based its ruling on the fact that the grooming policy in question was relatively gender neutral and imposed similar burdens on male and female employees.
When plaintiffs pursue claims based solely on sexual orientation, courts have denied those claims. Specifically, in Simonton v. Runyon, the Second Circuit would not expand the Price Waterhouse to sexual orientation stating the “theory would not bootstrap protection for sexual orientation into Title VII because not all homosexual men are stereotypically feminine and not all heterosexual men are stereotypically masculine.” Many other jurisdictions have applied the same reasoning.
Gender identity claims based solely on gender conformity, have been relatively successful. Most courts reason individuals with self-concepts involving gender identity “fail to conform, per se, to socially-defined gender norms.” However, claims not based exclusively on conformity to gender stereotypes have not been as uniformly accepted.
For example, the Tenth Circuit upheld a verdict against a transgender bus driver, finding the plaintiff was fired for a legitimate non-discriminatory reason – concern regarding liability for employing a person with male genitalia who used female public restrooms along the bus route. The court also stated that transgender persons as a class are not protected under Title VII, although it acknowledged such individuals could still prevail using the Price Waterhouse analysis of gender stereotyping.
On the other hand, in Texas case, the court found a plaintiff to have a viable claim under Title VII when a job offer was rescinded after a background check revealed the plaintiff to be biologically male. Specifically, the court stated, “To that end, Lopez’s ‘transsexuality is not a bar to her sex stereotyping claim. Title VII is violated when an employer discriminates against any employee, transsexual or not, because he or she has failed to act or appear sufficiently masculine or feminine enough for an employer.’”
Perhaps most importantly, the Equal Employment Opportunity Commission (“EEOC”) has given some guidance regarding gender identity discrimination claims. Specifically, in its ruling in Macy v. Holder, the EEOC held that “claims of discrimination based on transgender status, also referred to as claims of discrimination based on gender identity, are cognizable under Title VII’s sex discrimination prohibition.” “While recognizing that all of Macy’s claims were ‘simply different ways of describing sex discrimination,’ the Commission articulated various ways to state a valid claim and provided more thorough descriptions of two theories courts have advanced in the past: the sex-stereotyping approach, which describes discrimination against transgender individuals as rooted in gender stereotypes, and the per se approach, which posits that such discrimination is inherently sex discrimination because it relates to a change in sex.”
Hiring and Termination Issues
The EEOC is charged with adjudicating claims regarding discrimination claims related to employment with the federal government. Specifically, EEOC enforces the prohibitions against employment discrimination in Title VII of the Civil Rights Act of 1964, the Equal Pay Act of 1963, the Age Discrimination in Employment Act of 1967, Sections 501 and 505 of the Rehabilitation Act of 1973, Titles I and V of the Americans with Disabilities Act of 1990 (ADA), Title II of the Genetic Information Non-discrimination Act (GINA), and the Civil Rights Act of 1991. These laws prohibit discrimination based on race, color, sex, religion, national origin, age, disability, and genetic information, as well as reprisal for protected activity. The Commission’s interpretations of these statutes apply to its adjudication and enforcement in federal sector as well as private sector and state and local government employment.
The EEOC has held that discrimination against an individual because that person is transgender (also known as gender identity discrimination) is discrimination because of sex and therefore is covered under Title VII of the Civil Rights Act of 1964. The Commission has also found that claims by lesbian, gay, and bisexual individuals alleging sex-stereotyping state a sex discrimination claim under Title VII. Federal government employees may file claims of discrimination under the Part 1614 EEO process on any of the bases covered under the laws EEOC enforces above.
Additionally, the District Court in the District of Columbia has provided Title VII protections to an applicant to the Congressional Research Service, part of the Library of Congress. In the Schroer case, the plaintiff applied for the position presenting as a male. She was highly qualified for the position and had the highest interview scores of all 18 applicants. After she received an offer of employment, Schroer told the Library she would be transitioning to female, they withdrew the offer of employment. The Court held that the Library’s conduct violated the language of Title VII itself in that it was discriminatory conduct based on sex.
State and Private Employees
As of this writing, 21 states offer some form of state-wide protection against discrimination for LGBT employees. The degree of protection varies depending on the type of employer – private, public, or quasi-public – and level of protection – sexual orientation and gender identity or sexual orientation only. In addition, “At least 171 cities and counties have enacted ordinances that prohibit private employers from discriminating on the basis of sexual orientation. Another 111 local governments have only extended these protections to public employees.” An example of statewide provision (New Mexico) is attached below.
 42 U.S.C. §2000e-2.
 See Holloway v. Arthur Anderson & Co., 566 F.2d 659, 662 (9th Cir. 1977). See also Oiler v. Winn-Dixie La., Inc., Civ. A-00-3114, 2002 WL31098541, *4 (E.D. La. Sept. 16, 2002).
 See Price Waterhouse v. Hopkins, 490 U.S. 228, 251 (1989).
 Id at 235.
 Id at 251.
 See Nichols v. Azteca Rest. Enter., Inc., 256 F.3d 864, 874-875 (9th Cir. 2001) (firing gay male because he did not conform to gender norms ruled a violation of Title VII). But see Simonton v. Runyon, 232 F.3d 33, 38 (2d Cir. 2000) (ruling sexual orientation discrimination did not violate Title VII).
 See Rene v. MGM Grand Hotel, Inc., 305 F.3d 1061 (9th Cir. 2002).
 See Centola v. Potter, 183 F. Supp. 2d 403 (D. Mass. 2002).
 See Heller v. Columbia Edgewater Country Club, 195 F. Supp. 2d 1212 (D. Or. 2002).
 Id at 1223.
 See Jespersen v. Harrah’s Operating Co., 444 F.3d 1104 (9th Cir. 2006).
 Id at 1111-1113.
 See Simonton v. Runyon, 232 F.3d 33, 35 (2d Cir. 2000).
 See Judy Bennett Garner and Sandy James, Employment Discrimination Against LGBTQ Persons, 2013 Georgetown Journal of Gender and the Law, Vol. XIV, 363, 370 citing: King v. Super Serv., Inc., 68 Fed. App’x 659, 664 (6th Cir. 2003) (“[T]he animosity directed towards the plaintiff because of h.is apparent sexual orientation is … different from discrimination on the basis of sex.”); Hamm v. Weyauwega Milk Prods., Inc., 332 F.3d 1058, 1062 (7th Cir. 2003) (“The protections of Title VII have not been extended, however, to permit claims of harassment based on an individual’s sexual orientation.”); Bibby v. Phila. Coca Cola Bottling Co., 260 F.3d 257 (3rd Cir. 2001) (dismissing plaintiff’s claim because employee only claimed discrimination because of sexual orientation); Fredette v. BVP Mgmt. Assocs., 112 F.3d 1503, 1510 (11th Cir. 1997) (“We do not hold that discrimination because of sexual orientation is actionable.”); Hopkins v. Bait. Gas & Elec. Co., 77 F.3d 745, 75 1-52 (4th Cir. 1996) (“Title VII does not prohibit conduct based on the employee’s sexual orientation, whether homosexual, bisexual, or heterosexual.”); Blum v. Gulf Oil Corp., 597 F.2d 936, 938 (5th Cir. 1979) (per curiam) (“Discharge for homosexuality is not prohibited by Title VII.”).
 See Garner, et al. above citing: Spearman v. Ford Motor Co., 231 F.3d 1080, 1085 (7th Cir. 2000) (noting that “sex stereotyping may constitute evidence of sex discrimination”); Rosa v. Park West Bank & Trust Co., 214 F. 3d 213 (1st Cir. 2000) (reinstating an Equal Credit Opportunity Act claim on behalf of biologically male plaintiff who alleged that he was denied an opportunity to apply for a loan because he was not dressed in “masculine attire”); Schwenk v. Hartford, 204 F.3d 1187, 1202 (9th Cir. 2000) (noting that Title VII prohibits “discrimination because one fails to act in the way expected of a man or woman”); Higgins v. New Balance Athletic Shoe, Inc., 194 F. 3d 252, 261 n.4 (1st Cir. 1999) (citing Price Waterhouse, 490 U.S. at 250-51) (“[J]ust as a woman can ground an action on a claim that men discriminated against her because she did not meet stereotyped expectations of femininity, a man can ground a claim on evidence that other men discriminated against him because he did not meet stereotyped expectations of masculinity.”).
 See Garner et al. above at 370.
 Id citing Etsitty v. Utah Transit Auth., 502 F.3d 1215, 1229 (10th Cir. 2007).
 See Lopez v. River Oaks Imaging & Diagnostic Grp., Inc., 542 F.Supp. (S.D. Tex. 2008).
 Id citing Schroer v. Billington, 424 F.Supp.2d 203 (D.D.C.2006); Barnes v. City of Cincinnati, 401 F.3d 729, 737 (6th Cir. 2005); Smith v. City of Salem, 378 F.3d 566, 574-75 (6th Cir. 2004); Mitchell v. Axcan Scandipharm, Inc., No. 05-243, 2006 WL 456173, 2006 U.S. Dist. LEXIS 6521 (W.D. Pa. Feb. 17, 2006); Kastl v. Maricopa County Cmty. Coll. Dist., No. CIV 02-1531-PHX-SRB, 2004 WL 2008954, *2, 2004 U.S. Dist. LEXIS 29825, at *8 (D. Az. June 3, 2004); Tronetti v. TLC Healthnet Lakeshore Hosp., No. 03-CV-0375E(Sc), 2003 WL 22757935, *4, 2003 U.S. Dist. LEXIS 23757, at *12 (W.D.N.Y. Sept. 26, 2003); see also Lynch v. Baylor Univ. Med. Ctr., No. 3:05-CV-0931-P, 2006 WL 2456493, *5, 2006 U.S. Dist. LEXIS 62408, at *17 (N.D. Tex. Aug. 23, 2006); cf. Schwenk v. Hartford, 204 F.3d 1187, 1202 (9th Cir.2000); Rosa v. Park W. Bank & Trust Co., 214 F.3d 213, 215-16 (1st Cir.2000).
 See Macy v. Holder, No. 0120120821, 2012 WL 1435995 (E.E.O.C. Apr. 20, 2012).
 Id at *4.
 See EMPLOYMENT LAW — TITLE VII — EEOC AFFIRMS PROTECTIONS FOR TRANSGENDER EMPLOYEES. Harvard Law Review Vol. 126:1731, 1733.
 See Macy v. Department of Justice, EEOC Appeal No. 0120120821 (April 20, 2012) http://www.eeoc.gov/decisions/0120120821%20Macy%20v%20DOJ%20ATF.txt (Macy v. Holder above).
 See Veretto v. U.S. Postal Service, EEOC Appeal No. 0120110873 (July 1, 2011); Castello v. U.S. Postal Service, EEOC Request No. 0520110649 (Dec. 20, 2011) http://www.eeoc.gov/decisions/0520110649.txt.
 See Schroer v. Billington, 577 F.Supp. 2d 293 (D.D.C. 2008).
 Id at 295.
 Id at 296.
 Id at 296-299.
 Id at 305-306.
 Currently California (1992, 2003), Colorado (2007), Connecticut (1991, 2011), Delaware (2009, 2013), District of Columbia (1977, 2006), Hawaii (1991, 2011), Illinois (2006), Iowa (2007), Massachusetts (1989, 2012), Maine (2005), Minnesota (1993), New Jersey (1992, 2007), New Mexico (2003), Nevada (1999, 2011), Oregon (2008), Rhode Island (1995, 2001), Vermont (1991, 2007) and Washington (2006) protect sexual orientation and gender identity. Maryland (2001), New Hampshire (1998), New York (2003) and Wisconsin (1982) protect sexual orientation only.
 See Garner et al. supra at 375.