EEOC Seeks to Provide Job Protection for LGBT Employees

This article appeared in the Summer/Fall 2013 issue of “Virginia Human Resources Today” magazine.

In its Strategic Enforcement Plan published in December 2012, the EEOC identified 6 national priorities. One of these priorities is devoting more attention and resources to “emerging or developing” issues. The EEOC specifically identified “coverage of lesbian, gay, bisexual and transgender individuals under Title VII” as an emerging issue. What does this mean for employers?

Let’s start with the EEOC’s seminal decision on April 20, 2012 in Macy v. Holder. Macy applied for a position at a federal agency. The agency told Macy it intended to hire him pending the completion of some paperwork. In the interim, Macy informed the agency she was transgender and in the process of transitioning from male to female. Five days later, the agency told Ms. Macy the position was no longer available. The EEOC held that “claims of discrimination based on transgender status, also referred to as claims of discrimination based on gender identity, are cognizable under Title VII.” Moving forward, the EEOC contends that there is a violation of Title VII when it is shown that “gender” is a factor in an employment action.

Consider the facts of another recent case. Mr. Doe worked in an all-male warehouse with a “culture of horseplay” that was found to be “vile and obnoxious enough to score 9 on a scale of 10.” The obnoxious conduct was directed to Mr. Doe, but to other male employees as well.
Doe finally complained to HR and the conduct stopped. However, Doe was subsequently laid off. He filed a charge with the EEOC contending that he was subjected to a hostile work environment based on sex as well as retaliation. The EEOC sued on his behalf.

In EEOC v. McPherson, a federal district court recently dismissed the EEOC’s case. In so doing, the Court found that Doe was married, had children, weighed 220 pounds, and was not physically threated by the comments. He also conceded that there was no sexual proposition or sexual touching. He did not carry himself like a woman or act in a way that could be characterized as feminine. He testified that he was “just as much of a man as anyone else.” Based on these facts, the Court dismissed the case holding that it would be inappropriate to “expand the reach of Title VII to preclude offensive workplace language even when it is not directed at a person of the male sex because of that person’s male sex.”

Although unsuccessful in McPherson, this case demonstrates that the EEOC will be looking for test cases to develop and/or expand the law. (Another same sex harassment case that bears watching is EEOC v. Boh Brothers Construction, a case on appeal to the full Fifth Circuit Court of Appeals.)

There is currently no federal statute that makes it illegal for a private employer to discriminate against a person based on his or her sexual orientation. In April 2013, however, the House and Senate reintroduced the Employment Non-Discrimination Act (ENDA), which would prohibit discrimination on the basis of “sexual orientation or gender identity.” As of this writing, however, it does not appear that ENDA will become the law in 2013.

I have no doubt that questions and challenges as to the potential legal rights of LGBT employees in the workplace will become much more prevalent. As with all legal developments impacting the workplace, HR professionals will need to be proactive to understand the new and evolving landscape. HR professionals should also analyze what steps, if any, need to occur within their businesses. As examples, should employers modify their current EEO policies? Do managers need training as to potential LGBT issues? These questions, and others, are ones you will need to evaluate as the law continues to develop.