Supreme Court Rules Title VII Prohibits Discrimination Based Upon Sexual Orientation and Transgender Status – Part II

On Monday I sent out an update that the U.S. Supreme Court had ruled that an employer who fires an employee for being gay or transgender violates Title VII. There are a few key aspects about this ruling that I want to point out.

  1. This is not new law. Unlike a new statute, this ruling is actually the Supreme Court telling us how Title VII should have been interpreted all along. And, many courts have been ruling that Title VII prohibits discrimination based upon sexual orientation and transgender status for years. However, the Fifth Circuit (covering Louisiana, Mississippi and Texas) has traditionally not construed Title VII in this manner. So, although this ruling is not technically “new law”, it will change the way the courts in the Fifth Circuit construe these types of cases in the future.
  1. This is effective immediately. When a statute is passed, it takes effect on a specific date in the future. Unlike a statute, the Supreme Court’s ruling is effective immediately.
  1. Change your policies now. The employee handbooks and manuals used by some employers contain a list of the types of characteristics that the employer will not discriminate against (age, race, sex, color, religion….). Although the Supreme Court ruling means that sexual orientation and transgender status are subsumed in “sex” employers should consider specifically listing sexual orientation and transgender status as protected characteristics in their handbooks and employee manuals.
  1. Train! We are all familiar with the fact that we must periodically train our employees on the application of our policies and procedures, and especially on our harassment/discrimination policies. Employers need to ensure that they revise their training to include sexual orientation and transgender status as protected classes when it comes to harassment and discrimination. We are going to see an increase in these types of cases, and our ability to prove that we provided adequate training will be a key element of our defense.
  2. As odd as it sounds, treating men and women the same can be discriminatory. The Supreme Court stated it this way: “An employer cannot escape liability by demonstrating that it treats males and females comparably as groups….An employer who intentionally fires an individual homosexual or transgender employee in part because of that individual’s sex violates the law even if the employer is willing to subject all male and female homosexual or transgender employees to the same rule.” The fact that you don’t hire either gay females or gay males is not a defense; it still amounts to discrimination based upon sex.

A Couple Action Items for HR in 2015

I. Should you add sexual orientation and transgender status to your harassment/discrimination policies?
As most HR professionals know, federal law does not facially include sexual orientation or trans-gender status as protected categories. And, while some states and cities have passed their own laws protecting these groups, leaving employers to comply with a patchwork of state and local laws  (Houston, Texas passed such an ordinance in 2014.), neither Louisiana nor Baton Rouge have done so. However, the United States Attorney General issued a memorandum in December 2014, making clear the federal government’s position that Title VII of the Civil Rights Act of 1964 should be interpreted as covering transgender employees.

Continue reading “A Couple Action Items for HR in 2015”

U.S. Department of Justice Takes Position that Title VII Prohibits Gender Identity Discrimination

gender identityOn December 15, 2014, U.S. Attorney General Eric Holder issued a Memorandum that it is the position of the Department of Justice (DOJ) that Title VII’s prohibition against sex discrimination includes discrimination based on gender identity, including transgender status. This is an about-face from the DOJ’s stated position in 2006 that Title VII’s prohibition on sex discrimination did not include discrimination based on gender identity or transgender status.

Continue reading “U.S. Department of Justice Takes Position that Title VII Prohibits Gender Identity Discrimination”