EEOC Forbids Discrimination Based on Gender Identity or Sexual Orientation

 

The Equal Employment Opportunity Commission (EEOC) is now enforcing a groundbreaking development under the Title VII Civil Rights Act: they are prohibiting sex discrimination and forbidding any employment discrimination based on gender identity and sexual orientation.

Over the past few years, through litigation, investigation, hearings and appeals, the EEOC has taken the position that existing sex discrimination provisions in Title VII protect lesbian, gay, bisexual and transgender (LBGT) applicants and employees against employment discrimination.  These federal protections apply regardless of any contrary state and local laws.

The EEOC isn’t adding a protected class (i.e. race, religion, national origin, disability, etc.) under this decision but rather interpreting and recognizing sexual orientation and gender identity to fall under unlawful sex discrimination; the protected class itself is “sex.”

The following are examples of LGBT-related sex discrimination claims (from the EEOC’s publication, “What You Should Know About EEOC and the Enforcement Protections of LGBT Workers”):

  • Failing to hire an applicant because she is a transgender woman.
  • Firing an employee because he is planning or has made a gender transition.
  • Denying an employee equal access to a common restroom corresponding to the employee's gender identity.
  • Harassing an employee because of a gender transition, such as by intentionally and persistently failing to use the name and gender pronoun that correspond to the gender identity with which the employee identifies, and which the employee has communicated to management and employees.
  • Denying an employee a promotion because he is gay or straight.
  • Discriminating in terms, conditions, or privileges of employment, such as providing a lower salary to an employee because of sexual orientation, or denying spousal health insurance benefits to a female employee because her legal spouse is a woman, while providing spousal health insurance to a male employee whose legal spouse is a woman.
  • Harassing an employee because of his or her sexual orientation, for example, by derogatory terms, sexually oriented comments, or disparaging remarks for associating with a person of the same or opposite sex.
  • Discriminating against or harassing an employee because of his or her sexual orientation or gender identity, in combination with another unlawful reason, for example, on the basis of transgender status and race, or sexual orientation and disability.

The EEOC has created the following resource to assist employers in preventing discrimination in the workplace via “Preventing Employment Discrimination Against Lesbian, Gay, Bisexual or Transgender Employees.”

We here at VertiSource HR are committed to assisting you in creating a workplace that is free from harassment and discrimination as well as maintain compliance with federal and state law.  We can provide resources to you as well as training for your staff.  Just reach out to us at hr@vertisourcehr.com and let us know how we can assist.


By LeiLani Quiray, SPHR/Director of HR

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