There is no better way to close this six-part series on LGBT workplace issues than for me to don my Carnac the Magnificent garb and divine the future for employers. Imagine that I hold in my hand the following three hermetically sealed envelopes – the contents of which nobody knows. I will happily ascertain the answers to these questions in my borderline mystical way, including by predicting the next legislative enactment that could wreak havoc on your newly-revised and rolled out employee handbook.
Is Sexual Orientation Now A Protected Class Under Title VII?
Instead of Carnac, I would rather put on my best (worst?) Al Pacino scowl and deflect this question (of my own posing, no less) by asking “You talkin’ to me?” Why the churlish response? It depends on who you ask. And when you ask. And whether their answer is binding. And whether others will buy into their answer. (I recognize this is far worse than the quaint classic “it depends.”)
If you ask the EEOC (Equal Employment Opportunity Commission), the current majority answer is yes, discrimination on the basis of sexual orientation is barred under Title VII. In its 3-2 agency decision dated July 15, 2015, Baldwin v. Foxx, the EEOC commissioners constituting the three-person majority stated that “allegations of discrimination on the basis of sexual orientation necessarily state a claim of discrimination on the basis of sex.” Commissioner Chai Feldblum (one of the three member majority in the decision, who also joined in the Macy v. Holder decision a few years ago) made it clear that the EEOC’s “decision that sexual orientation discrimination is always sex discrimination under Title VII now applies across all of the Commission activities, including charges brought to us by employees and applicants who work in the private sector . . . .” The EEOC not only reiterated that gender stereotyping of LGBT individuals remains actionable sex discrimination, but also opined that sexual orientation discrimination is sex discrimination based on the theory of associational discrimination if an LGBT employee is purportedly being treated disparately due to his or her association with a person of the same sex.
Only the Supreme Court can issue a definitive ruling on the interpretation of Title VII. No such interpretation currently exists, and courts have gone to great lengths in the past to distinguish adverse actions based on sex from actions based on sexual orientation. Courts have looked to Title VII’s legislative history, as well as the EEOC’s own previous stance that Title VII did not encompass sexual orientation in the rubric of gender – and that holding seems quite deeply ingrained at this point. How courts will receive the EEOC’s interpretation in Foxx will no doubt soon be litigated hotly as challenges weave their way through the courts. Not to be left behind, be on the lookout for additional challenges based on exemptions for religious organizations and the impact of Hobby Lobby.
Will Legislation Resolve Differing Interpretations Of Title VII?
Within hours of the Supreme Court’s ruling in Obergefell, legislators in D.C. were laying the groundwork for a bill to protect LGBT employees against discrimination. On July 23, 2015, Senator Jeff Merkley (D. Or.) and Representative David Cicilline (D. R.I.) introduced the Equality Act of 2015 in Congress. The Equality Act of 2015 seeks to expand Title VII protections to include discrimination based on sexual orientation and gender identity. The reason for the bill, according to its sponsors? More than 206 million Americans – nearly two-thirds of the country – live in states where employers can fire someone for being gay. That is because only 19 states plus the District of Columbia explicitly prohibit discrimination based on sexual orientation and gender identity. Three additional states prohibit discrimination on sexual orientation alone. This patchwork of state laws and local ordinances affording some LGBT employees protections based on their sexual orientation or gender identity/expression is representative of the localization of employment law and the challenges multi-state employers face in creating compliant policies and enforcement.
It’s unclear if the Equality Act of 2015 will meet the same fate as the Employment Non-Discrimination Act (ENDA), which has floundered. ENDA was introduced in nearly every session of Congress since 1994 and failed each time. Religious liberty challenges and religious exemptions seemed to be the primary impediments to ENDA’s passage. As written, the Equality Act preserves exemptions for religious corporations, schools, and associations in areas like hiring. The measure does say that the Religious Freedom Restoration Act cannot be used to justify discrimination that would otherwise be prohibited under the Equality Act. Prominent and influential companies, including Apple, General Mills, American Airlines and Google, have all declared their support for the Equality Act, much like companies threw their support behind legalizing same-sex marriage as good business. Employers are well advised to stay aware of the status of the Equality Act and other legislation impacting LGBT individuals and customers, including the First Amendment Defense Act and possible similar state enactments.
What Is The Next Likely Test Case Or Enforcement Priority?
One doesn’t have to be Carnac to see into the future on this final question. The EEOC did not begin tracking charge data related to gender identity and sexual orientation until 2013. Through March 2015, the EEOC has already received nearly as many LGBT related charges as it received in all of 2013. The OFCCP’s proposed revised Sex Guidelines incorporate significant guidance on LGBT issues and forecast potential enforcement activity with federal contractors. Given these agencies’ strategic enforcement priorities, enforcement and litigation will undoubtedly continue its upward trend.
Suffice to say, there will be test cases filed on the question of whether sexual orientation is covered by Title VII. Also, be on the watch for challenges to the ADA’s express exclusion of LGBT individuals, including based on gender dysphoria. Based on the invocation of Equal Protection in finding a fundamental right to same-sex marriage exists (and the argument that same-sex marriage is directly related to sexual orientation and therefore is encompassed in the general rubric of gender), additional Equal Protection challenges may also be on the horizon. Issues involving gender transitions in the workplace and transgender employees have been the subject of numerous lawsuits already, but given some of the traction gained by some litigation in encompassing transgender within gender, expect to see even more of these cases filed, so tread carefully in this area in particular.