On the Rise: Expanded Protections for LGBT Employees

You may have read in the news recently about the accomplishments and productive outcomes of the most recent Florida legislative session. One act which you are not likely to have read about, however, is the Florida Competitive Workforce Act,[1] which died after failing to make it out of committee.[2] The Act’s stated purpose was to prohibit discrimination based on sexual orientation and gender identity in the workplace. While generally, a proposed act which fails to become law is of little import to business owners and the community at large, in this instance, the “beneath the surface” support and momentum behind the Florida Competitive Workforce Act warrants at least some attention.

Legislators have attempted to enact similar legislation, banning sexual orientation and gender identity discrimination in the workplace, for nearly a decade. Yet this year, a number of surprising players came out in support of the Florida Competitive Workforce Act, including Disney, AT&T, Marriott, CSX, Darden Restaurants, Office Depot, Wells Fargo, and the Florida Restaurant and Lodging Association.

At the federal level, a similar act—titled the Employment Non-Discrimination Act—has been introduced nearly every year since 1994. In 2013, the bill finally passed the Senate with bipartisan support.[3] However, the House version of the bill gained little traction, despite the 193 cosponsors backing the bill.[4]

Currently, at least 22 states have enacted laws to prohibit discrimination in the workplace based on sexual orientation.[5] Within Florida, approximately 31 counties and municipalities have sexual orientation and gender identity discrimination laws already in place.[6]

While new legislation on these issues is just now gaining momentum, courts and the Equal Employment Opportunity Commission (E.E.O.C.) seem to be several steps ahead of the curve. The E.E.O.C. has, fairly recently, expanded its interpretation of Title VII of the Civil Rights Act of 1964 to extend to discrimination on the basis of sexual orientation and gender identity.[7] Historically, courts rejected sexual orientation based claims under Title VII and unequivocally held that such protections were not intended by the 1964 Civil Rights Act.[8] In the past few years, however, a number of courts have begun to recognize claims against employers on the basis of sexual orientation and gender identity discrimination.[9] Two cases are currently pending in the Seventh and Eleventh Circuits, respectively, which assert claims of sexual orientation based discrimination under Title VII.[10]

Despite one’s personal sentiments on the merits of these changes, the burgeoning trend in law and legislation indicates that employers should take note and prepare for what many consider to be a seismic shift in employment law and business practices.

Some studies estimate that in the U.S., there are roughly 7 million LGBT private sector employees and 1.2 million LGBT government employees.[11] Within Florida, an estimated 328,000 employees identify as members of the LGBT community.[12] Approximately 1,412 EEOC charges including claims of sexual orientation and/or gender identity discrimination were filed throughout the country in the past year alone.[13]

Prudent employers have already taken steps to adopt internal policies and measures addressing these forms of discrimination. Some studies reflect that 93% percent of Fortune 500 companies have some form of internal policies in place to protect against or prohibit discrimination based on sexual orientation.[14] The expansion of protections, under either new state or federal laws or through common law development of existing laws, will undoubtedly bring expanded litigation for some employers.

Keeping a keen eye on this evolving issue, as well as the applicable ordinances, laws, and controlling precedents, is critical for employers, HR departments, and counsel. Getting a handle on what specific protections apply, as well as the parameters and requirements of those protections, will be essential in the coming months and years as these laws develop.

Whether through enactment of federal or state-wide legislation, expansion of existing protections through the E.E.O.C. or the courts, or informally throughout the business community, the tides appear to be changing when it comes to protections for LGBT employees. As with all employment issues, it is as important as ever to stay one step ahead of the changing landscape and the implications that follow.

[1] H.B. 45, S.B. 120.

[2] After 10 years of trying to get similar legislation enacted, proponents of the Act are encouraged by the fact that, this year, the bill was at least heard by the Senate Judiciary Committee, even though it ultimately died after a split, 5-5 vote. http://www.tallahassee.com/story/news/politics/cotterell/2016/02/13/competitive-workforce-act-legislature/80361652/

[3] S. 815.

[4] H.R. 1755.

[5]Florida Businesses for a Competitive Workforce, Fast Factshttp://flcompetitiveworkforce.com/portfolio-items/to-date-22-states-and-the-district-of-columbia-along-with-200-cities-and-counties-have-passed-non-discrimination-laws/; Employment discrimination: The next frontier for LGBT community, Jennifer Calfas, USA Today, Aug. 1, 2015

[6]Employment Discrimination Based on Sexual Orientation and Gender Identity in Florida, Christy Mallory and Brad Sears, The Williams Institute at The University of California School of Law, March, 2015.

[7]What You Should Know About EEOC and the Enforcement Protections for LGBT Workers, U.S. Equal Employment Opportunity Commission, April 4, 2016, http://www1.eeoc.gov/eeoc/newsroom/wysk/enforcement_protections_lgbt_workers.cfm?r; See Baldwin v. Dep’t of Transportation, EEOC Appeal No. 0120133080, 2015 WL 4397641 (EEOC July 15, 20150)(EEOC held that sexual orientation based discrimination constitutes an actionable claim for discrimination on the basis of sex under Title VII); see Macy v. Dep’t of Justice, EEOC Appeal No. 0120120821, 2012 WL 1435995 (Apr. 20, 2012)(EEOC held that discrimination against a transgender violates Title VII as discrimination based on sex).

[8]See, e.g. Burrows v. College of Cent. Florida, No. 5:14-cv-197-Oc-30PRI, 2015 WL 4250427, at *9-10 (M.D. Fla., July 13, 2015)(slip copy)(“claim for discrimination based on sexual orientation . . . [are] not cognizable under Title VII or the FCRA.”); Anderson v. Napolitano, No. 09-60744-CIV, 2010 WL 431898, at *4 (S.D. Fla., Feb. 8, 2010)(“The law is clear that Title VII does not prohibit discrimination based on sexual orientation.”); Ulane v. Eastern Airlines, 742 F.2d 1031 (7th Cir. 1984)(gender identity discrimination is not sex discrimination under Title VII); Vickers v. Fairfield Med. Ctr., 453 F.3d 757 (6th Cir. 2006)(sexual orientation discrimination is not sex discrimination under Title VII)

[9]Videckis v. Pepperdine University, No. CV 15-00298 DDP (JCx), 2015 WL 8916764, at *5 (C.D. Cal, Dec. 15, 2015)(finding that “claims of discrimination based on sexual orientation are covered by Title VII”); Isaacs v. Felder, No. 2:13cv693-MHT, 2015 WL 6560655, at *3 (M.D. Ala., Oct. 29, 2015)(while granting summary judgment in favor of the employer, the court noted that it agreed with the EEOC decision in Baldwin, finding “that claims of sexual orientation-based discrimination are cognizable under Title VII.”); see, e.g. Terveer v. Billington, 34 F. Supp. 3d 100, 116 (D.D.C. 2014)(court recognized as actionable a Title VII claim alleging discrimination on the basis of sexual orientation); see Glenn v. Brumby, 663 F.3d 1312, 1317 (11th Cir. 2011)(“discrimination against a transgender individual because of her gender-nonconformity is sex discrimination” under Title VII); accord Smith v. City of Salem, Ohio, 378 F.3d 566, 573 (6th Cir. 2004)(recognizing Title VII claim of discrimination based on gender identity as actionable); Schroer v. Billington, 525 F Supp. 2d 58 (D.D.C. 2007)(finding that a transsexual’s claim of discrimination through sex stereotyping sufficiently stated a cause of action).

[10]Hively v. Ivy Tech Community College, No. 3:14-cv-1791, 2015 WL 92605 (N.D. Ind., Mar. 3, 2015)(appeal filed); Evans v. Georgia Regional Hospital, et al., No. CV415-103, 2015 WL 5316694 (S.D. Ga., Sept. 10, 2015)(appeal filed).

[11]Documenting Discrimination on the Basis of Sexual Orientation and Gender Identity in State Employment, The Williams Institute at The University of California School of Law.

[12]Employment Discrimination Based on Sexual Orientation and Gender Identity in Florida, Christy Mallory and Brad Sears, The Williams Institute at The University of California School of Law, March, 2015.

[13]What You Should Know About EEOC and the Enforcement Protections for LGBT Workers, U.S. Equal Employment Opportunity Commission, April 4, 2016, http://www1.eeoc.gov/eeoc/newsroom/wysk/enforcement_protections_lgbt_workers.cfm?r;.

[14]Corporate Equality Index 2016, Human Rights Campaign Foundation.