As the workforce becomes more and more diverse, sexual orientation and gender identity have become very hot topics in discussions regarding employee rights. It may be surprising to learn that neither is considered a protected class under current federal employment discrimination law in the United States.
At last count, however, 32 states, including the District of Columbia, have passed laws prohibiting employment discrimination based on sexual orientation and/or gender identity. While federal government employees and contractors enjoy similar protections, Congress has yet to expand the statutorily protected classes of race, color, sex, religion, national origin, age, disability, and genetic information to include sexual orientation and gender identity for the millions of private sector employees in the United States.
Currently before the United States Congress is the Employment Non-Discrimination Act (ENDA), proposed legislation that would prohibit private employers with more than 15 employees from discriminating on the basis of sexual orientation or gender identity. ENDA would exempt religious organizations and non-profit, membership-only clubs — except labor unions — from coverage. Since its inception in 1994, a number of versions of ENDA have been introduced in Congress. The latest version of the bill was introduced in the 113th Congress on April 25, 2013, but it failed to pass the House of Representatives Subcommittee.
While Congress has been slow and reluctant to include sexual orientation and gender identity as protected classes in employment discrimination, the executive branch has spurred ahead in providing protection from such employment discrimination to federal employees and contractors. The Office of Special Counsel, tasked with investigating and prosecuting prohibited personnel practices in the federal government, has stated that discrimination claims regarding sexual orientation and gender identity may be covered under the Civil Service Reform Act as “Other Discrimination.”
Executive Order 11478, as amended by Executive Order 13087, also prohibits the federal government from discriminating against federal employees based on sexual orientation. Similarly, any contractor wishing to do business with the federal government must comply with Executive Order 11246, as amended on July 21, 2014, which prohibits federal contractors from discriminating on the basis of sexual orientation and gender identity.
In addition, the Equal Employment Opportunity Commission (EEOC) takes the position that it will entertain charges of discrimination asserting gender identity discrimination and retaliation claims on the basis that such complaints are cognizable under the sex discrimination prohibition of Title VII of the Civil Rights Act of 1964. Relying on the Supreme Court’s decision in Price Waterhouse v. Hopkins, the EEOC has reasoned that the term “sex” in Title VII encompasses both the biological differences between men and women, and gender. Thus, Title VII’s prohibition on sex discrimination also proscribes gender discrimination or sex stereotyping, which can be defined as any time an employer treats an employee differently for failing to conform to any gender-based expectations. For instance, in Veretto v. U.S. Postal Service, the charging party alleged that a coworker continuously made derogatory remarks about his sexual orientation and attacked him after learning that he intended to marry his male partner. The EEOC found that the charging party had sufficiently alleged a plausible sex stereotyping case where the coworker’s attack was motivated by the sexual stereotyping that a man should marry a woman.
As mentioned above, while the federal government has not explicitly included sexual orientation and gender identity as protected classes in employment discrimination laws, well over half the states, including the District of Columbia, have passed laws including these two characteristics as protected classes and prohibiting employment discrimination based thereon. The state laws vary significantly, especially with regard to recognizing claims of disparate impact and disparate treatment or only claims of disparate treatment. In fact, several states have only chosen to recognize gender identity discrimination and not discrimination based on sexual orientation. Thus, employers should thoroughly examine the laws in each state they do business and employ a workforce and seek appropriate counsel when necessary.