Let’s talk for a moment about LGBT rights and discrimination in the workplace.  Most Americans know of the protections offered under Title VII of the Civil Rights Act of 1964, more commonly known as the Civil Rights Act.  It was designed to make the promise of legal equality a reality for everyone in the United States.  Historically, it has been used to address disparities such as unequal voter registration requirements, and racial segregation in schools, housing, restaurants, and theaters.

          In regard to employee protection, the Civil Rights Act outlaws discrimination both in the workplace and during the job application process by prohibiting differential treatment based on race, color, religion, sex, or national origin.    Oddly enough though, in recent years there has been much debate on whether LGBT persons share the same protections under this landmark Act.  Some states have even taken formal steps to enact laws that either strip away or extend these rights to the LGBT community.  The federal government has appeared either supportive or completely unsupportive depending on the prerogative of the sitting Commander in Chief.

          Under President Obama’s Administration, the federal government took direct action to ensure equal protection under the law for LGBT persons.  In a ground-breaking 2012 decision (Macy v. Dept. of Justice), the EEOC held that gender identity discrimination (discrimination against someone because they are transgender) is covered under the Civil Rights Act.  In 2014, the Office of the Attorney General released a memo echoing that sentiment.  That same year, President Obama also issued an Executive Order prohibiting discrimination based on gender identity for purposes of federal employment and government contracting.  In June of 2015, the Office of Personnel Management, in conjunction with the U.S. Equal Employment Opportunity Commission (EEOC), the Office of Special Counsel, and the U.S. Merit Systems Protection Board released a joint employment rights guide that declared the Civil Rights Act protects persons from discrimination based on sexual orientation and gender identity.

          Now let’s fast-forward to 2017.  Americans are facing a new President who, along with his hand-picked Attorney General, has an entirely different view of who is entitled to equal protection under the law.  In July, in an employee discrimination case before the U.S. Court of Appeals for the 2nd Circuit, the Department of Justice filed an amicus brief[1] arguing its belief that the Civil Rights Act does not prohibit discrimination based on sexual orientation.   For most members of the LGBT community, these shifting interpretations of law have no doubt led to both frustration and confusion.

     So what sort of workplace protections, if any, are LGBT persons provided under the law?  Well that depends upon the state where you are employed:

          The U.S. Supreme Court has held that employment discrimination based on sex stereotypes[2] (e.g., assumptions and/or expectations about how persons of a certain sex should dress, behave, etc.), and sexual harassment in the workplace by members of the same sex[3] are prohibited under the Civil Rights Act.  U.S. Federal Courts, for the most part, are divided over whether the Act covers transgender discrimination and sexual orientation discrimination.  A listing of recent court cases regarding these matters can be found on the EEOC’s website.

          Fortunately, the EEOC (an agency responsible for enforcement of the Civil Rights Act in the workplace) continues to interpret the law as barring workplace discrimination based on gender identity or sexual orientation.  Employment attorneys may also examine additional causes of action at the local, state, or federal level that fall outside of the EEOC’s authority.  When fighting employment discrimination, a strategic and multi-pronged approach usually works best.

     So, what types of disparate or discriminatory treatment are actionable under the Civil Rights Act?

LGBT – Related Sex Discrimination Claims Include (*this list is not exhaustive*):

• Failure to hire due to transgender status
  • Termination of employment due to gender transition
  • Harassing an employee due to gender transition
  • Intentionally and consistently failing to use the gender pronoun that corresponds to the gender with which an employee identifies
• Denying equal access to a common restroom corresponding to an employee’s gender identity
• Denying a promotion to an employee because he is gay or straight
  • Harassing an employee due to sexual orientation or gender identity
    • Use of derogatory terms
    • Making sexually oriented comments
  • Discriminating in terms, conditions, or privileges of employment
    • Denying spousal health insurance to a legal spouse of the same sex

          If you believe that you have suffered from gender identity discrimination or sexual orientation discrimination you should consult an employment attorney at once.  He or she can review your situation and help determine if you have a claim against your employer.  Due to time restrictions imposed under the law, you should act quickly.  Waiting too long may bar your opportunity to bring a claim or limit your recovery options.  Call an experienced employment lawyer who will fight for your rights, stop harassment, and make employers pay for violating anti-discrimination laws[4].

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[1] A legal document provided by a non-party to a case, who possesses a strong interest in the subject matter of the case before the Court

[2] Price Waterhouse v. Hopkins, 490 U.S. 228 (1989)

[3] Oncale v. Sundowner Offshore Servs., 523 U.S. 75 (1998)

[4] Payment through settlement or litigation

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