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EEOC Commissioner, Lawyers Discuss Rights of LGBT Employees

Tuesday, February 26, 2013

Protections for lesbian, gay, bisexual, and transgender workers continue to emerge, but still more can be done to stop discrimination, an Equal Employment Opportunity commissioner and others said Feb. 13 during an employment law webinar sponsored by the American Bar Association.

Meanwhile, in a letter sent to the White House Feb. 14, 37 U.S. senators urged President Obama to issue an executive order banning federal contractors from discriminating against workers on the basis of sexual orientation and gender identity.

During the early years of Title VII of the 1964 Civil Rights Act, the courts “created the myth that there was little legislative history behind the inclusion of sex” as a protected trait under the statute, EEOC Commissioner Chai Feldblum said during Trends in Employment Discrimination Against LGBT Individuals. But after that, protections for LGBT employees began to be recognized, she said.

Progress Has Been Slow

But progress has been slow, Feldblum said. She observed that the groundwork for the recognition of the right of LGBT workers to be free from discrimination traces back to the U.S. Supreme Court's 1989 decision in Price Waterhouse v. Hopkins ( 490 U.S. 228, 49 FEP Cases 954 (1989)).

Prior to Price Waterhouse, she said, courts took the view that “sex” under Title VII meant only biological sex and that Congress did not intend protections for LGBT individuals.

She said Price Waterhouse, with its holding that gender stereotyping is a form of sex bias, laid the foundation for recent successful claims by LGBT workers.

Under Price Waterhouse, “sex” equals both biological sex and gender, and unlawful discrimination under Title VII is established when it is shown that gender played a role in an employment action, Feldblum said.

Nine years later, in Oncale v. Sundowner Offshore Services Inc. ( 523 U.S. 75, 76 FEP Cases 221 (1998)), the Supreme Court recognized that Title VII outlaws same-sex sexual harassment, Feldblum observed.

She said the reasoning of Price Waterhouse and Oncale has since been used in other cases to protect heterosexual and LGBT workers who do not conform to gender stereotypes in their dress, appearance, or expression.

EEOC Rules on Transgender Rights

All of these cases, Feldblum said, had an effect on EEOC's decision in Macy v. Holder (EEOC DOC 0120120821 (April 20, 2012); 63 BTM 146, 5/8/12).

In Macy, she noted, the commission held for the first time that claims by transgender workers alleging gender identity discrimination are viable under Title VII's prohibition of sex discrimination and may be processed under the federal sector administrative complaint framework established in EEOC regulations.

The reasoning of Macy really just goes back to Price Waterhouse, Feldblum said. She added that, because Macy was decided by the full commission, its holding applies to EEOC's private sector work as well.

But the full commission has not yet decided a case involving a lesbian, gay, or bisexual federal employee, Feldblum observed. However, she said, EEOC's Office of Federal Operations issued a memorandum to federal agencies in July 2012 explaining that the administrative complaint process for federal workers claiming employment bias--including the remedial provisions--also applies to LGB individuals, as well as transgender ones.

In addition, Feldblum said, the strategic enforcement plan EEOC passed in December 2012 (64 BTM 5, 1/1/13) provides that coverage of LGBT persons under Title VII is a developing area of law that will receive focused attention by the commission.

Statistical Overview

Brad Sears of the Williams Institute in Los Angeles provided a statistical overview of the participation of LGBT individuals in the workforce, the discrimination they face, and the rights they are afforded under state and local law.

The Williams Institute is a national think tank at UCLA Law School that conducts independent research on sexual orientation and gender identity law and public policy.

According to Sears, there are 6,948,729 LGBT individuals in the workforce, including 206,098 working for the federal government, 417,740 working at the state level, and 584,866 employed by a local government.

Twenty-one states and the District of Columbia have laws prohibiting sexual orientation discrimination, and 14 states and the District of Columbia have laws barring gender identity bias, Sears observed. Many localities also ban employment discrimination against LGBT individuals, he added.

Sears said some state laws even require employers to provide reasonable accommodations to transgender individuals. The analysis, he explained, is roughly the same as in the disability context, examining whether the employer engages in an interactive process with the employee and whether accommodating the employee would impose an undue hardship on the employer's business.

Research shows that LGBT workers face less discrimination in states with anti-bias laws, Sears noted.

He said research also indicates that LGBT employees who are open about their sexual orientation at work face significantly higher rates of discrimination than those who are not “out” at work.

The first national survey on gender identity bias showed that one of every two transgender individuals is subjected to discrimination at work, and that transgender workers face unemployment at twice the rate experienced by other workers, Sears added.

Research into the wages received by LGBT employees is “another good measure of discrimination,” Sears observed. That research shows that gay men are paid 10 percent to 32 percent less than similarly qualified male heterosexual workers, he said.

He added that lesbians actually earn the same or slightly more than their heterosexual counterparts, but they still are paid less than heterosexual men “because they are women.”

Research into the impacts of workplace sexual orientation and gender identity discrimination reveals that LGBT workers experience health issues and lower job satisfaction, Sears noted. He said they also exhibit less loyalty to their employer, more absenteeism, and a greater likelihood of seeking employment elsewhere.

Employer policies banning sexual orientation and gender identity discrimination can go a long way toward limiting these negative impacts, Sears said.

Best Practices and Benefits Issues

Edward J. Reeves of Stoel Rives in Portland, Ore., cited Williams Institute research showing that 98 percent of the top 50 Fortune 500 companies and 90 percent of federal contractors currently have employment policies banning sexual orientation discrimination.

In addition, 88 percent of the top 50 Fortune 500 companies and 67 percent of federal contractors have policies prohibiting gender identity discrimination, Reeves observed.

He predicted that, in the wake of EEOC's decision in Macy, those numbers could rise to 100 percent. Companies believe that LGBT-friendly policies “are good for the bottom line,” he said.

As for employment best practices with regard to LGBT individuals, Reeves said employers should adhere to an “appropriate conduct” standard, under which employees are expected to follow acceptable business principles in their personal and business conduct; accept responsibility for their conduct; and demonstrate a high degree of integrity at all times.

He added that employment policies should make clear that a core business objective of the company is to maintain a workplace in which every employee can achieve his or her full potential without facing discrimination or harassment based on sexual orientation, gender identity, or any other protected trait.

Reeves advised that accommodations for transgender workers should be handled on a case-by-case basis. The key, he said, is engaging the employee in an interactive dialogue to determine how he or she would like the situation to be handled, and then determining whether the company can satisfy the employee's request.

“Gender transition issues trigger leave concerns,” he noted. He said there is more guidance on the subject in the federal sector context in light of Executive Order 13087 and the Macy case.

During the webinar, Teresa Renaker of Lewis, Feinberg, Lee, Renaker, & Jackson in Oakland, Calif., addressed a wide range of employee benefits issues for LGBT workers and their spouses. On the subject of best practices, she suggested that employers that are in a position to select their own definition of “spouse” under an employee benefits plan should pick one that minimizes administrative burdens on the plan and its participants, and which equalizes coverage.

She also said companies should ensure that communications with plan participants are clear on the meaning of the term “spouse.” She stressed the importance of plan administrators making sure employees complete beneficiary designation forms.

In addition, front-line human resources and benefits employees should receive training on employment benefits issues specific to employees in same-sex relationships and transgender workers, Renaker said.

Looking Ahead

As for the next steps on the path toward anti-discrimination rights for LGBT workers, Feldblum mentioned the Employment Non-Discrimination Act (ENDA), which has been introduced repeatedly in Congress since 1994.

The most recent version of the law proposed barring employers with 15 or more employees, as well as all public sector employers, from basing employment decisions on sexual orientation and gender identity. The law would have permitted actual, perceived, and association-based claims and would have provided the same relief as available under Title VII, Feldblum said.

She also called for an executive order prohibiting federal contractors from discriminating on the basis of sexual orientation or gender identity.

Both measures would provide needed “certainty and clarity” on the issue, Feldblum said.

Letter to President Obama

In their Feb. 14 letter to President Obama, the 37 senators wrote, “We are committed to enacting legislation to protect all Americans. In the meantime, you are in a position to protect millions of American workers immediately by including sexual orientation and gender identity alongside long-standing anti-discrimination policies.”

The lawmakers who signed the letter--a group that includes Sen. Jeff Merkley (D-Ore.) and Sen. Tom Harkin (D-Iowa), chairman of the Senate Health, Education, Labor and Pensions Committee--also support passage of ENDA.

“From our perspective, ENDA's premise is simple: it would make federal law reflect the basic principle that Americans should be judged on their skills and abilities in the workplace, and not on irrelevant factors such as their sexual orientation or gender identity,” the senators wrote.

In addition to federal discrimination laws such as Section 503 of the Rehabilitation Act, federal contractors are subject to Executive Order 11246, barring discrimination on the basis of race, color, religion, sex, and national origin.

The senators said extending protections via executive order is necessary to ensure that workers “are not forced into the ranks of the unemployed based solely on their sexual orientation or gender identity.” They also argued that the proposed order would serve taxpayers by making the most efficient use of federal government resources.

The measure would reflect current practices already in effect for many contractors, according to the letter.

The five largest federal contractors--Lockheed Martin, Boeing, Northrop Grumman, Raytheon, and General Dynamics--currently have “LGBT-inclusive non-discrimination policies” in place, the senators wrote.

By Patrick Dorrian and Chris Opfer  

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