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By Patrick Dorrian
Oct. 22 — The Equal Employment Opportunity Commission is taking the issues of sexual orientation and gender identity discrimination “very seriously,” and the fight for recognition of the fundamental workplace rights of lesbian, gay, bisexual and transgender individuals is now on the agency's “front burner,” EEOC Commissioner Charlotte Burrows (D) said Oct. 22 during an employment law conference.
Burrows said the 846 discrimination charges the EEOC resolved in favor of LGBT bias victims in 2014, which included collecting monetary and others benefits from employers, may be just the “tip of the iceberg.”
To avoid liability and attract top talent, companies would be wise to include protections for LGBT workers in their workplace policies, the commissioner's co-panelists at PLI's Employment Law Institute 2015 advised.
“So much has happened in the past year,” Jill L. Rosenberg, an employment partner in Orrick, Herrington & Sutcliffe LLP's New York office, said in opening the session.
She recounted the recent developments that have altered the legal landscape for LGBT employees, especially those working for or with the federal government. Rosenberg cited an executive order signed by President Barack Obama (139 DLR AA-1, 7/21/14), the issuance of regulations by the Office of Federal Contract Compliance Programs (232 DLR A-1, 12/3/14) and guidance by other federal agencies (106 DLR A-15, 6/3/15), and passage of more laws and ordinances at the state and local levels outlawing job discrimination based on sexual orientation or gender identity.
“It's fair to say the EEOC has been the main catalyst, along with the courts, in bringing the law to where it is now,” she said.
The gender stereotyping theory, which is derived from U.S. Supreme Court rulings and holds that bias based on sexual stereotyping and failure to conform with gender norms can amount to sex discrimination under Title VII of the 1964 Civil Rights Act, has been the basis of several court rulings in favor of LGBT workers, Rosenberg said.
Burrows noted that the EEOC also has embraced the sex stereotyping theory. However, in a series of three rulings in administrative cases involving federal employees, she said, the commission has held that Title VII provides even broader protections against sexual orientation and gender identity discrimination.
In Macy v. Holder, EEOC, No. 0120120821, 4/20/12 (80 DLR A-4, 4/25/12), the EEOC held that bias based on gender identity is a form of sex discrimination under Title VII, and in Lusardi v. McHugh, EEOC, No. 0120133395, 4/1/15 (68 DLR A-1, 4/9/15), the agency defined what constitutes a hostile work environment based on gender identity and addressed the need for employers to permit a transgender employee to use the restroom consistent with his or her gender identity, Burrows said.
Finally, in Complainant v. Foxx, 2015 BL 229966 (EEOC 2015) (137 DLR AA-1, 7/17/15), Burrows added, the EEOC ruled that sexual orientation discrimination is a form of sex discrimination under Title VII apart from the sex stereotyping theory. She added that the complainant in Foxx, David Baldwin, recently sued under Title VII's sex bias provision in federal court.
Baldwin's lawyer told Bloomberg BNA Oct. 21 that a court ruling in his client's favor could have “far-reaching” consequences in the advancement of LGBT rights (203 DLR A-1, 10/21/15).
The Macy, Lusardi and Foxx rulings “are maybe some of the most important LGBT decisions to date and “should definitely be on your radar,” Burrows cautioned.
She said the EEOC views its agency decisions—although involving only federal sector workers—as also applying to its enforcement activities in private sector workplaces. The commission has sued private sector employers under Title VII on behalf of transgender workers, Burrows said (187 DLR A-1, 9/26/14; 109 DLR A-1, 6/8/15).
The EEOC already has won a settlement in one of those cases (70 DLR A-3, 4/13/15), and its participation in a separate case brought by a private plaintiff against Saks & Co. led to a settlement (44 DLR A-3, 3/6/15), Burrows noted.
Rosenberg said Saks demonstrates what a public nightmare these cases can be for an employer, as the extensive media coverage no doubt played a role in the company's decision to settle rather than to keep pressing arguments for dismissal that the court seemed open to.
To shield themselves against such potential liability and adverse publicity, employers should update their workplace discrimination and harassment policies, the panelists advised.
More and more companies are providing protections for LGBT workers, regardless of whether they are legally required to do so, Marla Hassner of New York financial services provider Macquarie Group said.
She said best practices would be to add protections for all LGBT workers, including special protections regarding restroom use, proper pronoun use, and gender transition support for transgender workers. Policies regarding proper pronoun use should prohibit “intentional misgendering”—referring to a worker who prefers to be called “he” as “she” or vice versa, Hassner said.
An employer's policies should also distinguish between gender identity and gender expression, she advised, as “they are really two different things”: gender identity is the gender one identifies with, while gender expression is the way someone expresses his or her gender.
Hassner also advised employers to have an expansive dress code that is gender neutral, and to include all types of spouses and domestic partners under leave policies.
“Education is the key,” so provide plenty of employee training, she said.
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