The Practical Employer

Justice Department Takes a Stand in Favor of LGBTQ Discrimination

Do right by all of your employees. Enact policies prohibiting LGBTQ discrimination in your workplace.

LGBTQ prohibitions continue to make headway in the courts. While Congress has remained silent on the issue, more and more state and federal courts hold that the law’s existing prohibitions against sex discrimination implicitly cover sexual orientation and other forms of LGBTQ discrimination.

The latest appellate court to take up this issue in the 2nd Circuit, in Zarda v. Altitude Express. Just last week, the Department of Justice filed its amicus brief [pdf] in this case. Yet, in that brief, the DOJ argued that Title VII’s prohibition against sexual stereotyping as sex discrimination does not include LGBTQ discrimination. This position advanced by the DOJ is contrary to that already espoused by the 7th Circuitmany district courts, and the EEOC.

Just because the DOJ argues that Title VII does not include LGBTQ discrimination does not mean that you are not free to adopt anti-LGBTQ-discrimination policies in your workplace. In fact, I urge that you must. I predict that 10 years from now, history will view those that stood in favor of LGBTQ discrimination the same as it views those that stood opposed to the civil rights movement 50 years ago. Employers, it is time to take a stand, and stand on the correct side of history.

My challenge to employers? On this issue, do what is morally correct, the law be damned. Ignore Title VII, ignore the EEOC, ignore the DOJ and ignore the courts. It is incomprehensible that in 2017 an employer can legally fire someone because of who he or she loves, dates or marries. Do right by all of your employees. Enact policies prohibiting LGBTQ discrimination in your workplace. Send the message to all of your employees that you are an employer of inclusion, not exclusion.

And yes, I’m tired on sounding like a broken record on this issue. But until we as a nation come to a national consensus, this message is worthy of playing on repeat.

Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. To comment, email editors@workforce.com. Follow Hyman’s blog at Workforce.com/PracticalEmployer.