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Do Federal Employment Laws Protect LGBT Employees?

By June 7, 2019 No Comments


There are many employment laws that govern the workplace, but arguably the most significant is the anti-discrimination law that falls under Title VII of the Civil Rights Act of 1964.  This federal law states that an employer may not discriminate against an applicant’s or employee’s protected class, which fall into five characteristics: race, color, religion, sex or national origin. The Act makes it unlawful for employment decisions to be made based on any of these five categories.

The Equal Employment Opportunity Commission (EEOC) enforces Title VII against employers, and discriminatory policies or decisions that may give rise to violations.  Such violations may include discrimination in recruiting, hiring, training, transferring, promoting, discipling, discharging, work assignment, performance analysis, or providing benefits.  Individuals who claim to have been discriminated against have their claims investigated by the EEOC, and in many cases, the claimants are permitted to proceed with an individual lawsuit, against the employer, to seek relief from the courts.

Historically, the EEOC has indicated that discrimination against an employee because of his or her sexual orientation or gender identity is a form of sex discrimination, prohibited by Title VII.  The courts have not always agreed with this interpretation, and there have been many contradicting rulings across the United States. Additionally, some states have amended its laws to include sexual orientation as a protected class. However, federal law has not been clear on this point. Currently, there are two cases that await a final judicial determination as to whether sexual orientation is a protected right.

In the case of Zarda v. Altitude Express Inc., Donald Zarda was a sky-diving instructor who was making a tandem jump with a female customer. Mr. Zarda advised the young women that he was “100 percent gay” in order to put her at ease because the tandem jump required them to be strapped so tightly together. The women’s boyfriend complained about the comment to Altitude Express, and Mr. Zarda was promptly terminated from employment.

In the case of Bostock v. Clayton County, Gerald Bostock was a ten-year employee with Clayton County who had worked as a child welfare services coordinator. Over the course of his employment, he had received many positives performance reviews and accolades. After Mr. Bostock openly participated in a gay softball league, his superiors conducted an internal audit of his program. Mr. Bostock was subsequently terminated for conduct unbecoming of a county employee.

The Supreme Court of the United States has agreed to consolidate and hear both cases during the 2019-2020 term, which will begin on October 7, 2019.  They will determine if employment discrimination based on sexual orientation violates Title VII of the Civil Rights Act. This will finally answer whether federal employment discrimination laws protect LGBT workers and shall set precedent for future claims.  The final decisions are expected by June 2020.

If you would like to know more about these issues and their impact on your hiring and termination decisions, please tune into the next webinar in our MBA Educational Series on June 24, 2019. Register here.

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