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The Employer Handbook Blog
And speaking of LGBT rights at work, here are two more recent victories for HR to ponder
As a corollary to yesterday’s post about David Lopez stepping down as EEOC General Counsel —
*** Googles “corollary” — swish! ***
— I bring you news of two recent court decisions advancing LGBT rights at work.
7th Cir. – Maybe Title VII protects workers from discrimination based on LGBT status after all.
Earlier this Summer, a three-judge panel concluded in Hively v. Ivy Tech Community College (opinion here) that, while federal anti-discrimination claw clearly covers sex discrimination, sexual-orientation discrimination is not the same as sex discrimination and, therefore, not protected under Title VII of the Civil Rights Act of 1964. That opinion came from the Seventh Circuit Court of Appeals.
On Tuesday, the Seventh Circuit vacated its decision and ordered a re-hearing en banc. That means that all the Seventh Circuit judges will hear the case, rather than the original three-judge panel.
A date for oral argument will be announced soon.
Bathroom rules and discrimination “because of sex.”
Separately, in Roberts v. Clark County School District (opinion here), the District of Nevada concluded earlier this month that requiring employees to use the bathroom corresponding to their biological sex is “precisely the sort of [sex] stereotyping” that Title VII prohibits.
In Roberts, the plaintiff, a campus monitor who aspired to become a police officer, had transitioned from female to male. The plaintiff’s boss announced that the plaintiff would “not be referred to as a man or allowed to use the men’s restroom until he could provide official documentation of a name and sex change.” Later, after consulting with the General Counsel, the plaintiff was told that he could “informally use a man’s name for the time being, but that ‘all official and formal documents’ would contain his female name until he obtained a court order and a name-change packet from human resources.” Further, men’s bathroom ban remaining in effect until the plaintiff had a documented sex change. Actually, the plaintiff was told that he couldn’t use the female restrooms either. Rather, he was required “to use a gender-neutral or single occupancy restroom.”
Eventually, after the plaintiff legally changed his name, the plaintiff’s employer permitted the plaintiff’s co-workers to address him as male. And, after the plaintiff filed an administrative complaint, the employer lifted the bathroom ban.
But, the damage was done. Plaintiff filed with the EEOC and, eventually, his lawsuit claiming sex discrimination.
Citing cases from across the country and EEOC precedent, Judge Jennifer Dorsey declared that she would ” join the weight of authority and hold that discrimination against a person based on transgender status is discrimination ‘because of sex’ under Title VII.”
Which side of history do you want to be on?
While federal law across the country remains uneven on workplace protections for the LGBT community, many cities and states have enacted protections. Still, cases like the ones in this post are part of a growing trend.
Indeed, most U.S. businesses have policies prohibiting discrimination based on sexual orientation or gender identity. So, if your business is one of the holdouts, ask yourself if this is the hill on which you really want to plant your flag. Because, at some point, the law of the land will protect the LGBT workforce.
And, when that happens, which side of history do you want to be on?
P.S. – Happy birthday to my dad and stepmom, the only two who actually read this blog 😉