Q: The news is currently covering the topic of LGBT–Lesbian-Gay-Bisexual-Transgender—rights in the workforce and in schools and particularly the expansion of these rights. Can you explain what is going on regarding this?
A: Efforts to expand civil rights laws to include sexual orientation and gender identity are not new. What is new is a growing support for the LGBT community, especially with younger generations, and an Administration that actively supports efforts to expand civil rights protections. As part of this active support, in July 2014, President Obama issued an executive order, effective April 2015, prohibiting federal contractors and subcontractors from discriminating against LGBT employees and applicants. Further, under the current Administration, government agencies have been issuing rule changes that impact LGBT rights. For instance, in December 2014, the Department of Justice announced it was expanding the definition of sex discrimination to include discrimination based on gender identity. This enables the DOJ Civil Rights Division to file suit against state and local public employers on behalf of transgender individuals (even if they are not expressly included in the language of the 1964 Civil Rights Act). Similarly, in February 2015, the Department of Labor issued a rule changing the definition of spouse to permit an eligible employee in a legal same-sex marriage to take FMLA leave to care for his or her spouse with a serious health condition. In addition, cases related to LGBT rights are making their way through the court system. One example is the June 2015 decision from the Supreme Court ruling that states cannot prohibit same-sex marriage.
Q: So these agency and White House actions affect employers and those of us in the human resources and law fields, right? How mostly are we affected?
A: Yes and no. Aside from issues relating to FMLA leaves, the changes that have been made thus far have much greater impact on public sector employers, or those private employers working for the federal government. However, there are other efforts to expand civil rights protections that are not yet laws or rules, but can have an impact on private employers. For instance, in July 2015, the Occupational Safety and Health Administration issued guidelines for employers stating that employers are to provide transgender employees greater access to restrooms. These guidelines provide that transgender employees should be allowed to use the restroom that corresponds with the worker’s gender identity, offer a single-occupancy gender neutral facility, or offer use of multiple-occupant, gender neutral facilities with lockable single occupancy stalls (not to date myself, but think of the law firm’s bathroom on the TV show Allie McBeal). Although not law, these guidelines reflect the attitude of this government agency regarding how employers should respond to issues related to transgender employees, and may receive judicial deference if the issue is presented in court.
Further, the EEOC has been filing lawsuits against private employers for discriminating against transgender employees. The EEOC’s initial approach to these issues was to claim that such discrimination amounted to sex-stereotyping, because employees were not conforming to the gender norms associated with their biological sex. The EEOC is now taking the position that the term “sex” encompasses sexual orientation and gender identity. Many of these suits have involved employers that failed to provide transgender employees access to the bathroom of the gender with which they identify. In March 2016, the EEOC filed its first lawsuits against private employers for discriminating against employees based on their sexual orientation, as opposed to couching claims in terms of sex-stereotyping. Thus far, the federal courts in Florida have failed to support the expansion of civil rights protections without either amendment to the civil rights statutes or an interpretation of the existing laws by either the 11th Circuit or the United States Supreme Court. Even so, employers should understand that although the law does not specifically provide protections for LGBT persons, the agencies that investigate complaints interpret the law to include such protections. Right now, private employers will be most affected by those agency investigations. The agencies will investigate complaints of discrimination before the matter will reach the courts. According to the EEOC’s statistics, LGBT-related workplace complaints went up 28% last year. The actual number of complaints is still relatively small compared to other complaints investigated by the agency (such as race, sex, or retaliation), but the EEOC has made it clear that protecting the LGBT community from discrimination and harassment is a top priority.
Q: From an employee perspective, do LGBT employees need to do anything to exercise these rights?
A: If LGBT employees feel they are suffering from discrimination; they should follow their employer’s reporting policies. If they do not feel that the employer has taken appropriate remedial action, depending on the type of claim, they can go to the EEOC, or another investigative agency with authority over the employer.
Q: This topic is also a hot potato political topic. Depending on what happens with the presidential election, might things change again?
A: Yes. A new President may revoke President Obama’s executive order. In addition, Congress can pass a bill canceling or changing the executive order, or someone could challenge the order in court on the basis that it is unconstitutional. As a matter of fact on May 18, 2016, the U.S. House of Representatives approved a bill, which if it is also approved by the Senate and signed into law, would undermine President Obama’s 2014 executive order.
As for the rules issued by government agencies, a new President can replace agency heads, and thereby, influence the priorities of those agencies.
Q: What about states’ rights? Recently, Mississippi passed a law regarding refusal of services. Will that stick and what should employers there know and/or do?
A: Laws allowing refusal of services to certain individuals generally fall under a different part of the civil rights laws than employment discrimination. These are laws governing public accommodations. Public accommodations are government operations and privately-owned businesses that offer certain goods or services to the public. The Mississippi law at issue allows religious organizations, for-profit businesses, and state officials to deny a range of services to LGBT persons without risk of punishment. It further prohibits local and municipal ordinances from containing their own non-discrimination ordinances. Employers in affected states should be careful when dealing with these issues. Although currently, Mississippi state law allows for such discrimination, federal agencies have made it clear that they will investigate and pursue employers and places of public accommodation for discriminating against the LGBT community. So, I would tell employers subject to federal agency authority, especially those with 15 or more employees or those whose businesses are consideration a public accommodation, that they can still be subjected to investigations and potential federal lawsuits for such discrimination. Typically, state laws will not preempt federal law.
Q: From the employer perspective, what size of an employee-base do you have to have for these changes to directly affect you and require you to make changes?
A: That depends on whether the employer is a public or private employer, where the employer is located and what laws apply. For private employers, any employer covered by OSHA should be cognizant of the guidelines for bathrooms. Further, neither Title VII nor the Florida Civil Rights Act, both of which apply to employers with 15 or more employees, explicitly recognizes sexual orientation or gender identity as protected classes. There are states (not Florida) that have specific statutory protections, and there may also be local ordinances that provide protections for sexual orientation and/or gender identity. For example, in Florida, the City of Sarasota has an ordinance that covers employers with five (5) or more employees. That ordinance provides protections from discrimination based on sexual orientation, but not gender identity. The text of the ordinance provides that it is to be interpreted in accordance with Title VII. Thus, if the courts begin to accept the EEOC’s argument that transgender individuals are protected from discrimination through a broad interpretation of sex, the local ordinance may very well be interpreted to include gender identity in the future. For those employers in Florida that are not subject to a similar local ordinance, and that do not currently have transgender employees, there is no reason to immediately make any changes. However, it is advised to continue to treat all employees fairly and with respect.
Q: And then there is North Carolina and the “bathroom wars.” Please explain that from both sides. What’s an employer to do?
A: North Carolina is an interesting situation. The law that was passed in North Carolina, in direct response to an ordinance passed by the City of Charlotte protecting transgender persons, requires that transgender individuals use the public restroom that corresponds with the sex listed on their birth certificates. In addition, similar to the law in Mississippi, the North Carolina law prohibits cities and towns from passing their own civil rights protections.
In response to North Carolina’s law, several federal agencies issued guidelines for employers stating that transgender persons are considered members of a protected classes for purposes of federal anti-discrimination laws. North Carolina and the federal government have both filed lawsuits against the other. As for employers in North Carolina, they should keep in mind the OSHA guidelines, and the stance that agencies enforcing federal discrimination laws have taken, which makes it clear that the North Carolina law does not impact their ability to enforce federal law, including the public accommodation provisions of the 1964 Civil Rights Act.
Q: What else should small businesses know to be within the laws and be fair to their staff and to their customers?
A: Being fair and complying with the law do not always perfectly overlap. Small businesses should learn what laws apply to them, and ensure they comply with the law. One of the easiest things to do right now to address concerns about transgender bathroom use, is to have at least one family (unisex) individual bathroom available.
Be mindful that many businesses choose to implement non-discrimination provisions for groups that are not yet protected by federal, state, or local law. In addition, businesses should have someone who can keep them advised of any new legislation that may be passed and could impact their legal obligations. For instance, The Equality Act of 2015 has been introduced to specifically add Title VII protection against discrimination based on sexual orientation and gender identity. Currently, the Equality Act is in committee. I suspect that it will not be passed in this legislative session. However, bills such as this one repeatedly have been introduced. Depending on the persons serving in Congress, it is possible that one day this type of legislation will pass. In Florida, the Florida Competitive Workforce Act (which had similar objectives) was introduced in 2015 and died in committee in early 2016. I fully expect that it, or something similar, will be introduced again during the next legislative session.
Q: Are there any helpful sites for LGBT issues related to employment?
Q: For your parting words, what do you think the future holds?
A: Using the 1964 Civil Rights Act as a point of reference, I would suggest that this is not an issue that will quickly or easily be resolved. When it was signed into law, the 1964 Civil Rights Act was a controversial piece of legislation that came to be only after a long battle for the majority of protections that it provided. It was controversial not only because of its employment protections, but also for the public accommodation provision prohibiting businesses from refusing to provide services to persons based on their protected status. This sounds very similar to the battles being waged today over LGBT rights.
Long before the 1964 Civil Rights Act became law, Presidents issued executive orders designed to stop discrimination. In June 1941, President Franklin D. Roosevelt issued an executive order that prohibited racial discrimination in the national defense industry. In July 1948, President Harry Truman issued two executive orders. One order was directed at the armed forces to provide “equality of treatment and opportunity for all personnel without regard to race, color, religion and national origin,” and the other instituted fair employment practices in the civilian agencies of the federal government. In 1949, some states had already passed civil rights legislation, and others had not. http://www.loc.gov/exhibits/civil-rights-act/world-war-ii-and-post-war.html. These facts also sound very similar to what we are seeing today with LGBT rights. I anticipate that due to society’s increasing acceptance of the LGBT community, the expansion of these rights will continue, probably quicker than the expansion of civil rights for race, color, and national origin.
As for the bathroom issue, in 20 years or so, we may all end up all in a unisex bathroom dancing to Barry White. There I go dating myself again!
THIS IS NOT LEGAL NOR FINANCIAL ADVICE
Jennifer Fowler-Hermes is Florida Bar Board Certified Specialist in Labor and Employment law and serves as counsel at Williams, Parker, Harrison, Dietz and Getzen in Sarasota, FL. She provides guidance to private and public sector clients of all sizes regarding employment law issues, including those arising under Title VII, the Americans with Disabilities Act, the Age Discrimination in Employment Act, the Family and Medical Leave Act, the Fair Labor Standards Act, National Labor Relations Act, the Florida Civil Rights Act, the Florida Uniform Trade Secrets Act, Fla. Stat. § 542.335 (non-compete), Whistleblower/Retaliation laws (including workers’ compensation retaliation), and employment law torts. Jennifer represents clients in state and federal courts, and before state and federal agencies.
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Jean (JJ in HR) is a certified senior-level human resources executive/consultant, adjunct professor, management trainer, professional speaker, resume writer, career coach, LinkedIn profile builder, and published author.