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Discrimination of LGBT is Sex Discrimination: EEOC Guidance Clearly Outlines the Commission’s Position
June 07, 2016
As discussions regarding the rights of lesbian, gay, bisexual and transgender (“LGBT”) employees in the workplace increase, the Equal Employment Opportunity Commission (“EEOC” or “Commission”) offers guidance concerning treatment of LGBT individuals as a protected class under Title VII of the Civil Rights Act. Last month, the EEOC issued What You Should Know About EEOC and the Enforcement Protections for LGBT Workers (the “Guidance”).

This Guidance clearly establishes the EEOC views claims relating to an employee’s identification as LGBT as potential discrimination pursuant to Title VII, which applies to most employers regardless of any state or local laws. Since only 2013, the EEOC’s guidance claims the Commission has obtained more than $6 million in monetary relief for members of the LGBT community in resolution of sex discrimination claims. And the number of claims is growing. Last fiscal year, the EEOC received more than 1,400 charges that included allegations of sex discrimination related to sexual orientation and/or gender identity/transgender status – a 28 percent increase from the prior year.
 The Commission’s theory for its Guidance is that employment actions motivated by gender stereotyping are unlawful sex discrimination. Consequently, Title VII’s sex discrimination provision prohibits not just discrimination based on gender, but also discrimination on the basis of sexual orientation and gender identity. The Commission looked at an example of a lesbian employee who is allegedly disciplined for displaying a picture of her female spouse. The employee can claim her employer took a different action against her based on her sex where the employer did not discipline a male employee for displaying a picture of his female spouse. The Commission explains this claim could amount to sex discrimination in three different ways:
  1. It allegedly involves treating an employee differently because of his or her sex (a female employee is disciplined where a male employee was not).
  2. It involves associational discrimination on the basis of sex;the employee is “alleging that the employer took the employee's sex into account by treating him or her differently for associating with a person of the same sex."
  3. It involves “discrimination based on gender stereotypes, including employer beliefs about the person to whom the employee should be attracted.”
The Commission also gives examples of what it considers to be potential claims:
  • Failing to hire an applicant because she is a transgender woman.
  • Firing an employee because he is planning or has made a gender transition.
  • Denying an employee equal access to a common restroom corresponding to the employee's gender identity.
  • Harassing an employee because of a gender transition, such as by intentionally and persistently failing to use the name and gender pronoun that correspond to the gender identity with which the employee identifies, and which the employee has communicated to management and employees.
  • Denying an employee a promotion because he is gay or straight.
  • Discriminating in terms, conditions or privileges of employment, such as providing a lower salary to an employee because of sexual orientation, or denying spousal health insurance benefits to a female employee because her legal spouse is a woman, while providing spousal health insurance to a male employee whose legal spouse is a woman.
  • Harassing an employee because of his or her sexual orientation, for example, by derogatory terms, sexually oriented comments, or disparaging remarks for associating with a person of the same or opposite sex.
  • Discriminating against or harassing an employee because of his or her sexual orientation or gender identity, in combination with another unlawful reason, for example, on the basis of transgender status and race, or sexual orientation and disability.
The takeaways for employers are clear. First, understand that members of the LGBT community are a protected class so far as the EEOC is concerned. This does not mean employers cannot discipline LGBT employees, only that employers must be careful to treat all of their employees fairly and consistently. This should not be a change of practice. Also, communication between management and employees is critical to ensure employees are being treated professionally and respectfully by management and their colleagues.
This area of the law remains a quickly changing practice area. Spilman will continue to monitor the effects of these amendments and will update friends and clients as necessary.
If you have any questions, please contact our Labor and Employment Practice Group.
Labor & Employment Law