The year 2015 has been a monumental one for gay rights with large public displays of support. With the United States Supreme Court’s declaration of marriage equality, many pro-LGBT (lesbian, gay, bisexual, transgender) groups are trying to build momentum to increase rights and legal protections afforded to them.
How has this impacted employment law?
While Obergefell vs Hodges was a case which involved the right to marry, it has much broader applications in social and professional spheres including issues on employment, insurance (health and life), housing, health care, public accommodations and more.
Are LGBT Workers Really Being Protected?
While there are numerous steps being taken towards equality, there are still limitations in the Courts interpretation of the existing employment laws. For instance, an Oklahoma Federal Court judge found that “a transsexual individual [alone] is not within a protected class.” The court clarified Title VII protections extend “to transsexual employees only if they are discriminated against because they are male or because they are female.”
Title VII of the Civil Rights Act of 1964, referred to above, dictates that it is illegal to refuse to hire or promote an individual, or terminate someone based solely on gender. While some claim that the Equal Employment Opportunity Commission (EEOC) has created a new protected class based on sexual orientation, the EEOC alleges it’s merely reinterpreting Commission findings and case law. Sexual orientation discrimination is a subsection of sexual discrimination:
The connection between sexual orientation and sex makes this an issue of sexual discrimination. The question becomes would this person act the same way if the employee was a different gender? If the answer is no, it’s sexual discrimination.
Sexual orientation discrimination is also associational discrimination based on who the individual chooses to associate with. Courts have consistently struck down associational discrimination, particularly when it comes to race.
This sort of discrimination is also based on stereotypes. LGBT individuals are often treated differently because they don’t fit society’s mainstream views of what is “masculine” or “feminine.”
The EEOC charges federal agencies to treat sexual orientation discrimination as sex discrimination. Still, many employers are wondering if LGBT individuals are a protected class or not. While they appear to be, the EEOC is stating they aren’t. However, this is still up to court interpretation and many courts believe sexual orientation discrimination is not protected under sexual discrimination protections of Title VII.
In 2013 the Senate tried to address ambiguities in the existing employment law by creating the Employment Nondiscrimination Act. This statute was created to prohibit discrimination in employment on the basis of sexual orientation and gender identity. However, while it passed the Senate, it did not become law and yet again, after nearly a decade of efforts year after year to pass this bill into law, it has failed to gain traction.
Because of the changing landscape of LGBT protection, it is important to work with attorneys who are keeping a close watch on discrimination and protected classes as interpreted by the Courts. The hard-working attorneys of Wenzel Fenton Cabassa, P.A. can help you understand the latest decisions in this hotly debated area of employment law.
Contact us today for more information on your employment case. The initial consultation is free.