Many are questioning whether, under the Trump Administration, the LGBTQ (Lesbian, Gay, Bisexual, Transgendered) community will be given the same protections provided to it during the Obama administration. The most accurate (and surely frustrating) answer to this question is, “it depends.”
Recently, the Eleventh Circuit Court of Appeals weighed in on LGBTQ protections and the decision is getting quite a bit of attention, some of it quite misleading.
Protected characteristics
While the court did state (correctly) that sexual orientation is NOT a protected characteristic under federal law (Title VII), many states, including California, have enacted various protections for this community. Under federal anti-discrimination law, a protected class is a group of people with a common characteristic who are legally protected from discrimination on the basis of that characteristic. The following characteristics are currently protected by federal law:
o Race
o Color
o Religion
o National origin
o Age (40 and over)
o Sex
o Pregnancy
o Citizenship
o Familial status
o Disability status
o Veteran status
o Genetic information
Side note: The federal government does prohibit sexual orientation discrimination and gender identity discrimination in the federal workplace. Employees of the federal government and individuals applying for jobs within the federal government cannot be discriminated against based on their sexual orientation.
In the case at hand, a female employee claimed that she was treated differently from other employees because of her sexual orientation. While she did not openly share with her co-workers that she was a lesbian, she argued that her “male uniform, low male haircut, shoes, etc.” made her sexual orientation obvious.
The issue of sexual stereotypes
The legal issue presented to the court was whether Title VII’s protections against sex discrimination allowed her to pursue a claim that she was treated improperly because: (1) she failed to match female stereotypes and (2) because of her sexual orientation. In other words, the court was not deciding whether she actually was treated differently or if she could establish why.
As indicated above, neither sexual orientation nor gender stereotyping are explicitly identified as protected categories under Title VII. The court allowed the “stereotype” theory due to case law precedent — stereotypes being at the heart of the Supreme Court’s 1989 Price Waterhouse case. In that case, the Supreme Court clearly stated that a negative impact at work because someone did not match the expectations for his or her gender is a type of sex discrimination and therefore a violation of Title VII.
What really differentiates these two theories is still up for {the courts to} debate (or legislature to legislate). Regardless, in terms of how a business owner treats his employees, one should err on the side of sensitivity as there is not much of a practical difference because a disgruntled employee could still bring a sex discrimination claim Title VII.
Moral of this story: Sexual orientation is protected in some form or another.
Sexual orientation is protected
Indeed, several courts have found a way to extend protection for sexual orientation discrimination in the workplace, and the issue is currently in front of a number of additional courts, which we hope indicates clarity on the matter in coming down the pike. Nevertheless, the Equal Employment Opportunity Commission (EEOC) has definitively stated that sexual orientation is protected under Title VII. Lastly, it is likely that the Supreme Court will be the one to decide the issue, and in the meantime, we advise employers to include sexual orientation (and gender identity or expression) in their list of protected categories in employment policies and train employees that such discrimination is prohibited under company policy.
This area of the law is constantly expanding. For more information on LGBTQ best practices in your place of work, contact experienced business attorney Drew E. Pomerance today.
