Are Federal LGBT Protections Coming to the Workplace?

Supreme Court and Congress consider the issue

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The U.S. Supreme Court will hear arguments in the fall on whether federal law prohibits employers from discriminating based on sexual orientation and gender identity—and Congress is considering a bill that would codify protections based on lesbian, gay, bisexual and transgender (LGBT) status. 

Federal appellate courts have disagreed on whether the ban on sex discrimination in the workplace under Title VII of the Civil Rights Act of 1964 covers LGBT discrimination. "The court's decision to review these cases and potentially give a definitive answer to whether federal protections against sex discrimination implicitly prohibit sexual-orientation and gender-identity discrimination is likely to provide clarity to employers that have faced conflicting decisions from various federal courts around the country," said Jim Paretti, an attorney with Littler in Washington, D.C.

The proposed Equality Act (H.R. 5) would afford broader protections than what the Supreme Court is currently considering in the cases before it. The legislation would expressly include sexual orientation and gender identity in the definition of "sex" under federal anti-discrimination laws that cover employment, housing, public accommodations, federal funding and the jury system. The bill is likely to pass the Democrat-controlled House of Representatives but may stall in the Republican-controlled Senate, noted Nonnie Shivers, an attorney with Ogletree Deakins in Phoenix.

Regardless of what happens at the federal level, employers may want to "get ahead of the game and update training modules" to focus on inclusion, she said. "Many employers have elected to be maximally inclusive and amend their policies in the absence of clear and consistent federal law."

Growing Support from Businesses

"Social and business acceptance of workplace protections for employees on the basis of sexual orientation and gender identity has expanded enormously," said Randy Coffey, an attorney with Fisher Phillips in Kansas City, Mo.

In November 2018, for example, more than 50 businesses signed a letter asking the federal government to uphold legal protections for transgender individuals and noting that diversity and inclusion are good for business.

Additionally, the U.S. Chamber of Commerce and other business groups support the Equality Act's proposed amendments to Title VII to provide employment protections based on sexual orientation and gender identity. 

[SHRM members-only toolkit: Managing Equal Employment Opportunity]

"Equality under the law fosters an environment where America's diverse workforce can reach its full potential without fear of discrimination," said Neil Bradley, executive vice president and chief policy officer for the Chamber of Commerce. He added that inclusive companies are better equipped to attract and retain talented workers.

"Treating people fairly and equally—regardless of sexual orientation or gender identity—is just the right thing to do," said JoLynn Markison, an attorney with Dorsey & Whitney in Minneapolis.

Check State Laws

Even if the Supreme Court declines to recognize LGBT discrimination as a form of sex discrimination under Title VII, employers must still comply with state and local laws relating to employment discrimination, Markison said.

"Know the laws of your city, county and state of operation and comply," Shivers said. These laws can be nuanced and afford different protections. For instance, some states have created protections only for public employees. Other states and localities prohibit discrimination based on sexual orientation, gender identity or gender expression—but not all three. "All three are unique and stand-alone but potentially overlapping characteristics," Shivers noted.

LGBTQ Protections Map.jpg

Most businesses already have incorporated sexual-orientation and, to some extent, gender-identity protections into their policies, Coffey said. By including such protections, businesses show that they take these matters seriously and will respond to LGBT discrimination just like they would for any other protected group, he added.

As a best practice, employee handbooks and policies should include prohibitions against discrimination on the basis of sexual orientation, gender identity, gender expression and transgender status, said Brooke Schneider, an attorney with Withers in New York City. "This is particularly true, as state and local laws seem to be evolving at a greater rate than the federal laws," and as employers continue to promote inclusive workforces and anti-bullying measures, too, she added.

What's Next?

In 2017, the Supreme Court declined to hear a similar dispute about whether Title VII prohibits sexual-orientation discrimination. At that time, conservative Justice Anthony Kennedy, a "crucial swing vote" and author of the Obergefell opinion extending marriage rights to same-sex couples, was still on the bench, Markison said. Kennedy retired in 2018 and was replaced by Justice Brett Kavanaugh, who "does not have a clear judicial record" on LGBT issues, she added.

"The balance could lie with Chief Justice John Roberts Jr., who notably did not join the conservative dissenters in [an opinion holding] that married same-sex couples are entitled to be listed on their children's birth certificates the same as married heterosexual couples," Markison said. "Regardless of how the Supreme Court ultimately rules, for employers, the best course remains to ensure equal treatment" in the workplace, she noted.

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