With October marking national LGBT history month, diversity and inclusivity are celebrated in many businesses across the country. This article will provide Pennsylvania business leaders with an update on the current state of employment law applicable to LGBT employees and on ways that employers may manage legal risk in an ever expanding area of workplace liability.
What is the current state of the law?
Starting with federal law, Title VII of the 1964 Civil Rights Act prohibits discrimination based on sex. The Equal Opportunity Commission (EEOC), charged with enforcing Title VII, interprets and enforces the law as prohibiting employment discrimination based on gender identity and sexual orientation.
According to recent decisions and guidance released by the EEOC, the EEOC views the following actions as “unlawful sex discrimination”:
< Refusing to hire an applicant because he or she is transgender.
< Terminating an employee because the employee has made a gender transition.
< Denying an employee access to the restroom that corresponds to the employee’s gender identity.
< Harassing an employee because of a gender transition, such as intentionally failing to use the name and gender pronoun that correspond to the gender identity of the employee.
< Denying an employee’s promotion because he is gay or she is lesbian.
< Providing a lower salary or denying spousal health insurance benefits to an employee because the employee has a same-sex spouse.
< Harassing an employee because of his or her sexual orientation or gender identity.
On the state level, the Pennsylvania Human Relations Act (PHRA), like Title VII, prohibits discrimination based on sex. The EEOC’s Pennsylvania counterpart, the Pennsylvania Human Relations Commission (PHRC), in August 2018, adopted official guidance explaining that the PHRA’s prohibition against sex discrimination includes discrimination based on sexual orientation, transgender identity, gender transition, gender identity and gender expression. The guidance, which may be located on the PHRC’s website, goes on to provide definitions of each of these terms.
LGBT employees have comprehensive workplace protection against discrimination. While Title VII applies only to employers with 15 or more employees, the PHRA applies to employers with as few as four employees. For LGBT employees of even smaller employers, local ordinance may provide protection from discrimination. For example, the cities of Allentown, Bethlehem and Easton have each adopted local ordinances prohibiting discrimination on the basis of sexual orientation and gender identity.
What should an employer to do to ensure LGBT employees equity in the workplace, consistent with federal and state law and, in many cases, local ordinance? Here are three ways to minimize risk in your workplace.
1. Document rational business-based reasons for employment decisions.
In one case where the EEOC found workplace discrimination, a transgender applicant was denied a position after informing the prospective employer of transition plans. The employer denied any wrongdoing and claimed that its hiring decision was based on another applicant being further along on his background check. Particularly because there were no known problems with the transgender applicant’s background check, the EEOC found that the employer’s reason was a pretext for discrimination.
Notwithstanding an employer’s best intentions, successful claims of discrimination may be built upon the appearance of discrimination. The best defense to any claim of unlawful discrimination is a rational business-based reason that is based on merit and/or business necessity.
2. Allow equal access to restrooms.
Both the EEOC and OSHA have released guidance urging employers to allow employees’ access to the restroom consistent with their gender identities. In its guidance on best practice regarding restroom access for transgender workers, OSHA stated as follows: “Bathroom restrictions can result in employees avoiding using restrooms entirely while at work, which can lead to potentially serious physical injury or illness.”
The EEOC has indicated that an employer may not require transgender employees to undergo or provide proof of surgery for equal access to the bathroom or facility corresponding to the employee’s gender identity. Additionally, the EEOC has indicated that restricting only transgender employees to a single-use bathroom was discriminatory.
According to OSHA’s guidance, which is consistent with EEOC guidance, employers may choose to offer single-occupancy unisex facilities to all employees. While perhaps not the preferred option for employers and their workforce, OSHA also suggests a gender-neutral restroom facility with multiple lockable single-occupant stalls.
3. Investigate all good faith claims of harassment on the basis of sex, including harassment based on gender stereotyping, gender identity, and sexual orientation.
While harassment claims have traditionally been based on lewd comments between men and women, the EEOC has found, for example, unlawful harassment in gender stereotyping and in the intentional misuse of pronouns. Even our nation’s highest court, the U.S. Supreme Court, has held that sex discrimination includes gender stereotyping. Employers are, therefore, best advised to expand the scope of what types of claims are worth investigating.
This October, Pennsylvania employers may celebrate LGBT history month with their workforces or, at the very least, implement policies and practices to manage legal risk in a growing area of liability. Some simple changes may make the difference between legal liability and legally defensible employment decisions.
Keely Jac Collins is a partner and employment attorney with the KingSpry law firm in Bethlehem who represents organizations of all sizes and in all sectors. She can be reached at firstname.lastname@example.org.