It has been a while since we provided an update on the long march through the courts for gay and transgender employment rights (AA, 4-30-17, P. 1). Although many of those cases are still pending, the legal battle seems to be nearing an end, and for all intents and purposes may already be over.
As a result, this could be the time for employers to adopt policies protecting against costly potential litigation over this issue. Even if your company is based in a state where gay rights laws don’t yet exist, it is becoming more likely that federal law will complete the extension these protections already begun under existing civil rights statutes.
In the past few years the main battleground has been in the U.S. Courts of Appeal throughout the country. A split in appeals court decisions initially appeared to set up a conflict the Supreme Court would need to resolve, and that may still happen.
The Eleventh Circuit Court of Appeals held that federal law did not protect an employee who says he was fired for being gay in a case that is being appealed to the Supreme Court. In three other cases where courts of appeal held the law did apply, employers also have filed High Court appeals.
However, in recent years, in most of the appeals courts in which the issue has arisen, even when those courts initially were divided, the decisions eventually upheld gay rights in employment under federal antidiscrimination law.
Title VII of the Civil Rights Act of 1964 prohibits discrimination based on religion, national origin, race, color and “sex,” which until recent years meant gender. Legislative history also shows that when it was passed, Members of Congress made it clear Title VII did not apply to “homosexuals and transsexuals,” in the language of the day.
In fact, legislation introduced in Congress for the express purpose of granting protected legal status to gays has never passed, and decades of court precedent have upheld the restrictive interpretation.
In one recent Appeals Court decision a concurring judge admitted that the law’s definition of “sex” discrimination was not intended to include discrimination based on sexual orientation. But, he wrote, the statute needs an “interpretation that will update it to the present.”
In recent years, the Equal Employment Opportunity Commission (where one of the commissioners is an open Lesbian who promotes gay rights), also has held that federal civil rights law protects gays in the workplace.
During his second term, President Obama signed an executive order that prohibited discrimination against gay workers by government contractors and subcontractors. That order was renewed by President Trump not long after he took office.
EEOC has extended the law’s protection to transgenders as well, at least regarding hiring and harassment issues. Those protections also have been adopted by a number of cities and states.
When it comes to which bathrooms they can use, that is still up in the air, although the trend lately apparently has been towards both sides quietly finding accommodations. Previously filed lawsuits over the bathroom issue are still wending their way through the courts.
So how do you conduct your business to avoid becoming ensnarled in these controversies? Quite simply, do the same things you do to eliminate other kinds of discrimination in your workplace. Warn employees discrimination won’t be tolerated, address incidents of bullying and harassment when they arise, and make sure those conducting job interviews don’t say something stupid to applicants.
“We recommend that employers prohibit such discrimination or harassment as a matter of company policy,” Robin Shea, partner in the law firm of Constangy, Brooks, Smith & Prophete, said last year. “We also recommend that it be included in companies’ regular equal employment opportunity and harassment training.”