Expanding Transgender and LGBTQ+ Rights in the Workplace
Title VII of the Civil Rights Act protects people from discrimination at work based on their identity, including race and sex, as a discrimination lawyer can attest. In addition, more federal circuit courts are recognizing identities relating to sexual and gender identity as protected identities as well. As of this month, twenty states and Washington, DC have laws forbidding discrimination in employment matters based on gender identity and sexual orientation. In addition, the federal agency in charge of enforcing Title VII and employment discrimination law – the Equal Employment Opportunity Commission (“EEOC”) – has said that employment discrimination includes discrimination based on gender identity and sexual orientation.
The issue is relatively new, at least in terms of case law set by circuit courts. There is some disagreement among the courts, but they are generally heading in the direction of increased federal protections for LGBTQ+ workers. In 2017, the Court of Appeals for the Eleventh Circuit held that Title VII does not cover discrimination based on sexual orientation; the Seventh Circuit held that it does.
Like the Seventh Circuit, the Second Circuit, in early 2018, held that employment discrimination includes sexual orientation in Zarda v. Altitude Express. The case was about whether the fact that the plaintiff – a skydiving instructor – had a viable suit for being discriminated against because of how he – as a gay man – presented masculinity and maleness at work. The Second Circuit – following the Seventh – said that even though sexual orientation is not explicitly addressed by Title VII, it is a sub-type of sex-based discrimination, which is explicitly addressed.
Similarly, in March 2018, the Sixth Circuit held in EEOC v. R.G. & G.R. Harris Funeral Homes that Title VII also covers discrimination on the basis of transgender identity. In the case, the employee said that the employer violated Title VII by ending her employment after she stated she would be transitioning from male to female and would be presenting as female at work from then on. The Sixth Circuit held that this should be protected under Title VII because it is about sex, and therefore is sex-based discrimination, prohibited under federal employment law.
These cases demonstrate that federal law is moving in the direction of providing increased protections for LGBTQ+ communities in the workplace. By expanding the scope of Title VII to include more groups – including transgender and gay workers – it means that employees will have more access to justice in bringing such suits against workplaces that violate these laws.