A primer on employment discrimination

By R. SCOTT OSWALD

Although federal law is, in many ways, deficient in protecting LGBT employees against employment discrimination, there are many interesting new developments around the country in the field of LGBT employment discrimination law.

Sixteen states, plus the District of Columbia, ban employment discrimination based on sexual orientation and gender expression/identity. Five states ban employment discrimination based on sexual orientation, but fail to address gender discrimination/identity.

In 2011, Connecticut, Massachusetts and Nevada extended their protections to protect transgender persons. The New York Assembly passed the Gender Expression Non-Discrimination Act or “GENDA” on April 30, 2012. These new laws carefully define “gender identity.” For example, the Massachusetts law defines the term as, “any person’s gender-related identity, appearance, or behavior, whether or not that appearance, identity, or behavior differs from that traditionally associated with the person’s physiology or assigned sex at birth.” These states joined 13 other jurisdictions with similar protections.

Glenn v. Brumby is a federal ruling that will affect state government employees. On Dec. 6, 2011, the United States Court of Appeals for the Eleventh Circuit, which handles cases originating in Florida, Georgia and Alabama, ruled in favor of equal protection rights for transgender state government employees. Vandy Beth Glenn, a state employee diagnosed with Gender Identity Disorder, lost her job when she informed her supervisor that she was about to undergo a course of treatment to transition from male to female.

The Court of Appeals ruled that although there is no federal law that specifically prohibits discrimination based on gender identity, trans persons are protected by Title VII of the Civil Rights Act of 1964, which prohibits sex discrimination. Title VII disallows discrimination based on gender-based stereotypes, and applies in the case of trans persons who do not comply with these stereotypes that their supervisors are attempting to enforce in the workplace. In April 2012, the United States Equal Employment Opportunity Commission came to the same conclusion in the case of Macy v. Holder, which involved Mia Macy, an employee of the federal Bureau of Alcohol, Tobacco, and Firearms.

Although federal law is lacking, U.S. Rep. Barney Frank, along with 203 co-sponsors, reintroduced the Employment Non-Discrimination Act or “ENDA” on March 30, 2011. Sen. Jeff Merkley introduced the bill in the Senate. ENDA has been introduced in some form every year, except for one, since 1994. ENDA would create a clear, nationwide policy regarding LGBT employment discrimination.

ENDA, like the employment discrimination provisions in Title VII, would apply to employers with 15 or more employees. Religious institutions and the military are exempt. The Senate Health, Education, Labor, and Pensions Committee held a hearing on ENDA on June 12, 2012.

Despite the piecemeal legal enforcement against discrimination, many companies have voluntarily enacted policies to protect their LGBT employees. The Human Rights Campaign reports that 87 percent of Fortune 500 companies have voluntarily implemented non-discrimination policies that apply to LGBT employees. However, a comprehensive federal law is necessary to protect these employees when the employers choose to violate their own protocols.

R. Scott Oswald is managing principal of The Employment Law Group, PC. For more information, visit employmentlawgroup.net.