Federal law and LGBTQ+ employee workplace discrimination protections

Many states have discrimination laws that provide protections against discrimination on the basis of sexual orientation. For example, New Jersey’s Law Against Discrimination (LAD) specifically prohibits it and, although the Pennsylvania Human Relations Act does not set forth specific protections against discrimination for LGBTQ+ employees and individuals, the Pennsylvania Human Relations Commission (PHRC) has issued guidance that takes the position that it will accept and investigate sex stereotyping claims filed by LGBTQ+ individuals.

Title VII, however, only prohibits employment discrimination on the basis of race, color, religion, sex and national origin. As a result, there is no federal law that expressly prohibits employment discrimination against LGBTQ+ individuals. Nevertheless, certain federal courts have been interpreting Title VII to prohibit employment discrimination on the basis of sexual orientation or transgender status.

Smart Business spoke with Frank P. Spada Jr., an attorney with Semanoff Ormsby Greenberg & Torchia, LLC, about how courts are interpreting employment discrimination for LGBTQ+ individuals.

What are the courts using as a basis to determine what constitutes discrimination?

A 7th Circuit decision, Hively v. Ivy Tech Community College of Indiana, along with recent decisions in the 2nd and 6th Circuit Courts, extended protection from employment discrimination based on sexual orientation. The 2nd Circuit decision in Zarda v. Altitude Express held that sexual orientation discrimination is motivated, at least in part, by sex and should be considered discrimination for the purposes of interpreting Title VII. The Court reasoned that an individual’s sexual orientation cannot be defined without identifying that individual’s sex and therefore ‘sexual orientation is a function of sex.’

In March 2018, the 6th Circuit issued a decision in EEOC v. R.G.& G.R. Harris Funeral Homes, which involved a worker that claimed her former employer terminated her employment because she was transgendered and, at that time, undergoing gender transition. The 6th Circuit held that because the defendant’s decision to fire the worker was based on sex stereotyping and gender discrimination that it would be ‘analytically impossible to fire an employee based on that employee’s status as a transgender person without being motivated, at least in part, by the employee’s sex.’

In which cases has Title VII protection fallen short in the eyes of the courts?

In March 2017 the 11th Circuit, in Evans v. Georgia Regional Hospital, declined to extend Title VII protection to the claims of a lesbian employee who alleged she was terminated based on her sexual orientation. The Court held that a claim under Title VII alleging sexual orientation is not cognizable.

The U.S. Supreme Court denied an invitation to hear an appeal of the Evans case, but in May 2018, the 11th Circuit affirmed a lower court’s dismissal of a gay plaintiff’s claim of sexual orientation discrimination in Bostock v. Clayton County, Georgia. Bostock has again filed a petition with the Supreme Court for a writ of certiorari to decide the issue. The Supreme Court may now be forced to take up this issue to resolve the conflict.

What do these decisions mean for employers in Pennsylvania?

At present, the 3rd Circuit, which covers Pennsylvania, New Jersey, Delaware and the Virgin Islands, has not extended Title VII protections to LGBTQ+ individuals for workplace discrimination. But it is important for employers to understand that they must still comply with state law. Also, New Jersey’s LAD specifically protects employees against sexual orientation or gender identity discrimination and the PHRC has stated that it will accept and investigate sex stereotype claims filed by LGBTQ+ individuals under the Pennsylvania Human Relations Act.

Insights Legal Affairs is brought to you by Semanoff Ormsby Greenberg & Torchia, LLC

How to expand acceptance policies to avoid employee discrimination issues

Kristina Chung, Partner, Ropers Majeski Kohn & Bentley PC

Having diversity in the workplace not only brings a sense of harmony but also new perspectives that allow for creative development and collaborative innovation. Promoting acceptance and encouraging people with different backgrounds to be active in your company is just good practice — and it may keep you out of unwanted trouble.

Kristina Chung, a partner at Ropers Majeski Kohn & Bentley PC and an expert in employment law, says employee diversity can be a big boost to business, thanks to all the benefits that come with it.

“Having a diverse work force increases your own understanding of the greater world beyond,” she says. “We live in a diverse economy and global community now. This creates a clear business case for diversity to better understand our clients and customers. We also learn internally from different life experiences and perceptions of our colleagues to foster creativity, innovation, outside-the-box thinking and, ultimately, better service and products.”

Smart Business spoke with Chung to find out how to successfully build a diverse work force in your company.

Beyond race, religion, gender, sexual orientation and national origin, what are some concepts or characteristics that are related to employment diversity? 

There can be implicit biases attached to physical appearance such as weight, unattractiveness and body markings like piercings and tattoos. The same can be said for voice and speech impediments or for a person’s lifestyle choices or beliefs.

These biases can create an obstacle to promoting an inclusive environment. If you harbor preconceptions or subconscious notions about how bright, capable or productive a person is based on his or her outward appearance, speech or lifestyle, then you can harm your business because you may exclude someone who could be a significant benefit to your workplace.

What actions should an employer take to demonstrate support for a diverse workplace?

It’s important to show visible support and to take affirmative action. That can mean promoting qualified people who are of more diverse backgrounds into management-level positions or by engaging in community programs that focus on a diverse audience, including helping to provide scholarships and participating in mentorship and pro bono/volunteer services programs.

How can an employer avoid legal problems stemming from discrimination?

The importance of making available information about an employee’s rights, and providing updated training to and consistent monitoring of managers and supervisors, cannot be overstated. Companies should review their employee handbooks on a regular basis to make sure they are complying with their state’s respective laws, particularly as to their nondiscrimination clauses and prohibited conduct. And as to diversity, some companies are now incorporating a ‘commitment to diversity’ provision, although that is not required.

Companies need to ensure that their managers are properly trained, not just in the law, which is constantly evolving, but also for the actual handling of complaints and conducting of investigations. In California, larger companies are required to provide sexual harassment training and expanding those programs to help prevent discrimination could potentially help to reduce liability and damages awards. Diversity training goes hand-in-hand with an employer’s efforts to maintain a discrimination-free workplace. This type of training can include identifying, acknowledging and eliminating the implicit biases mentioned earlier.

Where should a business owner go for this type of training?

Seek the help of a trained professional with the proper background and experience in employment law. The benefit of using the services of a practicing attorney is that he or she will be up to date on recent legal developments. For example, California’s nondiscrimination laws relating to gender recently changed to specify gender identity and gender expression as protected categories. So now, employment handbooks can spell out their policies more clearly, which means employees can better understand their rights and employers can better understand what the law means and are better able to comply with it.

What should business owners do if a discrimination claim is filed against them?

Be open minded to hear everything that the employee has to say about the complaint first as part of a full-scale investigation. If the owner simply makes assumptions, it may lead him or her down the wrong path, such as litigation, that the employee never really even wanted. The owner should fully understand basis for the complaint and what the employee is looking for in terms of resolution.

During the investigation, the complaint should be taken seriously. That is why the person conducting the investigation must be properly trained so that he or she knows what is legally mandated and to make sure that all bases are covered. The owner should contact legal counsel to make sure he or she is complying with all rules and regulations, including not destroying documents and meeting required deadlines.

Kristina Chung is a partner with Ropers Majeski Kohn & Bentley PC. Reach her at (650) 780-1706 or [email protected]

Insights Legal Affairs is brought to you by Ropers Majeski Kohn & Bentley PC

Civil liberties group sues Morgan Stanley over discrimination

NEW YORK, Mon Oct 15, 2012 – The American Civil Liberties Union is filing what it says is the first lawsuit against an investment bank, Morgan Stanley, alleging discrimination for packaging subprime mortgage loans into securities.

The ACLU and other plaintiffs will file the case on behalf of five Detroit residents and its Michigan affiliate, claiming the investment bank encouraged a mortgage lender to make loans with justifiably high costs and a strong possibility of foreclosure to enrich its business of selling securities to institutional investors.

“With this lawsuit, real victims of the subprime lending scandal are stepping forward to hold investment banks like Morgan Stanley accountable for the devastation the banks wrought in their lives and in our economy,” ACLU Executive Director Anthony Romero said in a prepared statement.

The civil liberties group will file the lawsuit in U.S. District Court in New York, and asked the court to certify it as a class action. It said as many as 6,000 black homeowners in the Detroit area may have suffered similar discrimination.

Until now, discrimination lawsuits have been brought directly against the original mortgage lenders rather than investment banks that packaged the loans into securities, the ACLU said.