States in Forefront of Sexual Orientation, Gender Identity Bias Legislation

By Joanne Deschenaux Jul 28, 2015

ARLINGTON, Va.—Since the passage of Title VII of the Civil Rights Act of 1964, federal law has provided the foundation for protecting employees from workplace discrimination, Jill Rosenberg, an attorney with Orrick, Herrington and Sutcliffe in New York City, told attendees July 23, 2015, at an employment law conference presented by the National Employment Law Institute. Title VII bars employment discrimination on the basis of race, color, religion, sex and national origin, as well as retaliation against those who challenge discriminatory practices prohibited by the statute.

The subsequent passage of the Age Discrimination in Employment Act in 1967, the Pregnancy Discrimination Act in 1978, the Americans with Disabilities Act (ADA) in 1990 and the Genetic Information Nondiscrimination Act in 2008 added age, pregnancy status, disability status and an individual’s genetic information to characteristics protected by federal law, she said.

Although many of these statutes have been amended throughout the years to provide greater protections to employees, the enactment of new federal equal employment opportunity (EEO) laws has become difficult due, at least in part, to congressional gridlock, Rosenberg noted. Some version of the proposed Employment Non-Discrimination Act, which would bar workplace discrimination on the basis of sexual orientation and gender identity, has been considered in almost every Congress since 1984 and yet has never become law, she said.

“The world has changed,” Rosenberg said. “The federal government is no longer at the forefront of EEO legislation.”

Due to Congress’s inactivity, “the states have stepped in, enacting new laws or expanding rights” under existing state nondiscrimination laws, she said. Most state laws go further than Title VII and, in addition, an increasing number of municipalities are enacting their own EEO laws, she noted.

Every state except Alabama and Mississippi has enacted fair employment laws, some of which closely track federal law, Rosenberg said. But many states provide more expansive coverage, adding protection for additional characteristics or groups.

In addition, over 200 municipalities have enacted their own fair employment laws or ordinances. Becoming aware of the protections of state and local laws developments has become increasingly important to HR professionals, Rosenberg noted.

22 States Ban Sexual Orientation and/or Gender Identity Bias

The proliferation of state and local laws that are broader than federal law is apparent in the area of sexual orientation and gender identity bias, Rosenberg said. Title VII does not explicitly cover this type of discrimination, she noted, although the law’s prohibition against workplace bias because of “sex” has formed the basis for both types of claims. The Equal Employment Opportunity Commission has interpreted Title VII to protect lesbian, gay, bisexual and transgender (LGBT) workers, and several federal courts have ruled that Title VII provides some protection under some circumstances, most notably when a gay or lesbian worker claims to be the victim of “sex stereotyping.” However, in most instances, LGBT workers will not be protected under Title VII based on their sexual orientation or gender identity.

Many states have stepped in to fill this gap. According to information provided by the Human Rights Campaign (HRC), 22 states, along with the District of Columbia and Puerto Rico and many municipalities, have passed employment nondiscrimination laws covering sexual orientation and/or gender identity that apply to private employers. “Sexual orientation” refers to an individual’s physical and/or emotional attraction to the same and/or opposite gender. Examples of sexual orientations include homosexual, gay, lesbian, bisexual and heterosexual. An individual’s sexual orientation is not the same as an individual’s gender identity or gender expression.

These laws vary somewhat in the scope of coverage and protections granted, Rosenberg said.

Sexual Orientation Bias

State and local laws have different definitions of sexual orientation discrimination, Rosenberg said. For example, the Illinois Human Rights Act and the D.C. Human Rights Act simply provide that discrimination on the basis of “sexual orientation” is prohibited, without further defining the term. The California Fair Employment and Housing Act defines sexual orientation to include heterosexuality, homosexuality and bisexuality. The New York City Human Rights Law (NYCHRL) expands this definition to include the association with someone of a particular sexual orientation. The New York State Human Rights Law (NYSHRL) expands the definition to include asexuality.

Protection from discrimination on the basis of an individual’s perceived sexual orientation may also be covered under state or local law. Both the NYCHRL and the NYSHRL extend protection to employees on the basis of their “actual or perceived” sexual orientation.

To the extent that sexual orientation is covered under state law, the protections usually extend to all aspects of the employment relationship, including hiring, termination, harassment, retaliation for claiming sexual orientation bias and receipt of employee benefits as governed by state law.

Bias Based on Gender Identity and Gender Expression

“Gender identity” refers to an individual’s “innate, deeply felt psychological identification as a man, woman or some other gender, which may or may not correspond to the sex assigned to them at birth,” Rosenberg said. “Gender expression” refers to “all of the external characteristics and behaviors that are socially defined as either masculine or feminine,” such as dress, grooming, mannerisms and speech patterns.

According to the HRC, 18 states and the District of Columbia and Puerto Rico offer protections against discrimination based on gender identity and/or expression to private-sector employees. A number of cities, including some in states that do not have any statewide prohibitions against such bias, have enacted their own ordinances, Rosenberg noted.

A separate basis for protection may exist under state disability discrimination laws to the extent that an individual is diagnosed as suffering from gender dysphoria, which is also known as gender identity disorder, and defined as a condition in which someone is intensely uncomfortable with their biological gender and strongly identifies with, and wants to be, the opposite gender, Rosenberg said. Although gender dysphoria is specifically excluded from coverage under the ADA and some state laws, some state courts have begun to interpret state and local nondiscrimination laws to include gender dysphoria.

There are currently no laws or court decisions that require employers to provide insurance coverage for gender reassignment surgery, even if they operate within a state that recognizes gender identity as a protected class, she added.

Expect concerns about gender identity to come to your workplace soon, Rosenberg cautioned. “If you have not had issues surrounding a transgender employee, it is probably only a matter of time,” she said.

Keeping Up with Changing Laws

“So how, as an employer, do you keep up with all of this?” Rosenberg asked. “Someone in your world has to be keeping track of what is happening,” she said, suggesting employers make sure there is someone in the organization tasked with following changes in state and local laws.

And what should multistate employers do in establishing policies for each state in which they do business? Should they go state by state or establish a one-size-fits-all rule? Employers are moving toward more comprehensive coverage, Rosenberg noted. “It may be better to be over-inclusive,” she said.

Don’t forget to educate your managers and to audit your practices. “Make sure you are compliant” with all applicable laws, she said.

Joanne Deschenaux, J.D., is SHRM’s senior legal editor.


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