Workplace LGBT Law Update 11:15, December 14, 2016

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Workplace LGBT Law Update

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We have previously written that employment law for the LGBT community is moving toward greater inclusiveness and stronger protections. For example, the Equal Employment Opportunity Commission’s landmark settlement of a sexual orientation discrimination lawsuit, along with prior precedent-setting cases establishing transgender protections under Title VII, seem emblematic of the direction LGBT law is heading. Here are some updates to this area of law.

7th Circuit Rethinking Sexual Orientation Discrimination

The 7th Circuit Court of Appeals has thrown out its own ruling that sexual orientation was not covered by Title VII. A three-judge panel of that court had rejected an adjunct college professor’s claim under Title VII that she was denied a full-time position because of her sexual orientation, reasoning that precedent led to the conclusion that “Title VII does not apply to claims of sexual orientation discrimination.” Although the three-judge panel felt that it was required to follow precedent, it noted that employment law cases had created “a paradoxical legal landscape in which a person can be married on Saturday and then fired on Monday for just that act.” Hively v. Ivy Tech Community College [(7th Cir. 2016) no. 15-1720]

The full panel disregarded the prior decision and will hear oral arguments anew on November 30, 2016. As two principal attorneys at Jackson Lewis observed, “Rehearing an issue already decided by a smaller panel is rare. This may indicate a majority of the judges on the Court found flaw in the initial ruling.”

Nevada Feds Protect Transgender Rights

In related news, a federal court in Nevada has “joined the weight of authority” and ruled that Title VII’s prohibition against discrimination based on sex encompasses gender identity, and hence protects a transgender police officer who identifies as male.

In this case, the Clark County School District (CCSD) prohibited campus monitor Bradley Roberts from using both the men’s and women’s restrooms. After working for the CCSD for 17 years as a woman under the name Brandilyn Netz, Roberts began the process of transitioning into a man, and requested that he be called “Bradley Roberts” and referred to using male pronouns. However, CCSD declined to officially change his gender in its records and confined Roberts’s restroom use to a single-occupancy gender-neutral restroom until he provided official documentation of a sex change. CCSD eventually lifted the restroom ban and allowed Roberts to use the men’s restroom after Roberts filed an administrative complaint. But it was too little, too late. Roberts sued CCSD for sex discrimination under Title VII, among other things.

CCSD argued that it had not discriminated based on sex because Title VII only protects employees from discrimination based on “sex,” not “gender” (or gender identity). The Court disagreed and ruled that because CCSD “banned Roberts from the women’s bathroom because he no longer behaved like a woman . . . banned Roberts from the men’s bathroom because he is biologically female . . .  [and] discriminated against Roberts based on his genitalia . . . , Roberts was clearly treated differently than persons of both his biological sex and the gender he identifies as—in sum, because of his transgender status.”

The Court found in favor of Roberts’s discrimination claim and ordered the parties to attend a mandatory settlement conference. Roberts v. Clark County School District [(USDC DNV 2016) No. 2:15-cv-00388-JAD-PAL]

California’s “Oddly Cutting-Edge” Restroom Law

Nevada’s next-door neighbor California recently recognized expanded transgender rights by passing a law requiring businesses and government agencies to identify all publicly available single-user toilet facilities as gender-neutral (“all-gender”). “Single-user toilet facilities” are restrooms “with no more than one water closet and one urinal with a locking mechanism controlled by the user.” The new law, identified as AB 1732, takes effect on March 1, 2017.

The Associated Press reports that Assembly member Phil Ting (D-San Francisco) called the law’s concept of equality “oddly cutting-edge when compared with the discrimination being enacted in other states.” The article also observes that AB 1732 was passed against a backdrop of a national debate about transgender restroom use currently playing out in several state legislatures and the federal courts.

Leaders & Outliers

Of course there remains a strong contingent of resistance to recognizing transgender rights, primarily based on religion. Although we are aware of one case in which an employer successfully asserted a religion defense against a transgender employee’s lawsuit for discrimination under Title VII, it appears to be an outlier.

Overall, federal law and public opinion are trending toward greater LGBT rights in the workplace. In fact, a recent Harris Poll survey revealed that 67% of respondents would favor a federal law prohibiting workplace discrimination against someone who is gay or transgender, and that 71% were more likely to work for a company that opposed HB 2, the controversial North Carolina law that mandates multiple-occupancy bathrooms or changing rooms to be used only by persons based on their biological sex.

Many states laws and employer policies already recognize greater protections for the LGBT community than federal law does currently. Employers that do not currently protect sexual orientation or transgender status would be wise to shore up their policies and corporate culture to address these issues before litigation forces their hand.

Considering the overall direction workplace LGBT law and public opinion seem to be heading, do you want your company to be a leader or an outlier?

Compliance training is an important part of every employer’s toolkit to reinforce its leadership’s values and to avert workplace discrimination. LawRoom provides online compliance training on sexual harassment, ethics, and data security to thousands of companies and universities.

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Steve Treagus
Stephen Treagus, JD's, previous practice as an attorney specializing in employment litigation exposed him to the rough-and-tumble world of employment relationships gone awry. Today, this experience informs his articles and courses, helping employers avoid costly litigation and get employment law right. Stephen earned his JD from John F. Kennedy University School of Law and his BA from Sonoma State University.

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