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The Practical Employer

LGBTQ Bias Moral, Not Legal Issue

When LGBTQ discrimination becomes universally illegal in the United States, on what side of history do you want to be as an employer?

We could spend hours, perhaps even days covering employers’ top 10 employee handbook mistakes. I recently took that wide-ranging topic and boiled it down to a webinar, touching on a number of points including missing at-will disclaimers, salary discussion bans, inflexible leave-of-absence policies, and omitted or ineffective harassment policies.

I also addressed anti-discrimination policies that ignore LGBTQ employment rights. Here’s the legal background on that issue:

  • Title VII is silent: No matter how many times you read Title VII, you will not find the words “sexual orientation,” “gender identity” or any other terms that expressly include LGBTQ individuals. At least four different legislative sessions of Congress have introduced ENDA, the Employment Non-Discrimination Act, which would amend Title VII to include “sexual orientation” and “gender identity” to its list of protected classes. The first three times, the bill died in committee. The last time, in 2013, it made it to the floor of the Senate but failed to reach a vote.
  • Some states and municipalities have acted: Twenty states and the District of Columbia have their own laws that prohibit sexual orientation and gender identity discrimination in employment. Another two states prohibit just sexual orientation discrimination. Twenty-eight states have no such protections. Additionally, at least 255 cities and counties prohibit discrimination on the basis of sexual orientation and gender identity for employees.
  • The EEOC has been processing LGBTQ discrimination charges under Title VII’s sex discrimination prohibition: In July 2015, the EEOC formally announced that it would process LGBTQ charges as sex discrimination charges. According to the EEOC, “When an employee raises a claim of sexual orientation discrimination as sex discrimination under Title VII, the question is not whether sexual orientation is explicitly listed in Title VII as a prohibited basis for employment actions. … Sexual orientation discrimination is sex discrimination because it necessarily entails treating an employee less favorably because of the employee’s sex.”
  • Following the EEOC’s lead, most federal courts that have examined the issue have also concluded that Title VII’s prohibition against sex discrimination includes LGBTQ discrimination: The most notable court to weigh in is the (usually conservative) Seventh Circuit Court of Appeals, in Hively v. Ivy Tech Community College. In that court’s words: “The compelling social interest in protecting homosexuals (male and female) from discrimination justifies an admittedly loose ‘interpretation’ of the word ‘sex’ in Title VII to embrace homosexuality.” In other words, changes in society since Title VII became law in 1964 justify reinterpreting the meaning of the word “sex” using 2017’s societal norms. While most federal courts that have examined this issue agree with Hively, there are some outliers, not all courts have had the opportunity to weigh in, and the Supreme Court has not yet offered its definitive opinion.
  • The Trump administration is anti-LGBTQ protections: Most recently, the Department of Justice has offered its opinion that because Title VII is silent on the issue, it does not prohibit LGBTQ discrimination.

Thus, the law is far from clear as to whether it is illegal for an employer to discriminate against an employee because of that employee’s sexual orientation or gender identity, although (Trump’s DOJ notwithstanding), it is trending in that direction.

After explaining “the law,” I issued this challenge to webinar attendees: “Be on the right side of history.”

When LGBTQ discrimination becomes universally illegal in the United States (and it will), and history looks back on this era during which this brand of discrimination was questionably legal, on what side of history do you want to be as an employer? The side that condoned (or, worse yet, participated in) this discrimination, or the side that took a stand against it?

Let me make this very clear. There is no good reason to justify anyone being against protecting LGBTQ civil rights.

Your best-case scenario? You don’t like LGBTQ people. Even if I give you every benefit of every doubt, that’s as good as it’s going to get for you if you come out against LGBTQ civil rights.

Worst case? You’re an evil, hate-mongering bigot.

If you doubt me, in place of “LGBTQ,” substitute “African-American,” or “women” or “Jews.”

How does your denial of equal rights sound now? Are you still comfortable with your position?

So, I ask again, on what side of history do you want to be? I know my answer.

No matter how many times you read Title VII, you will not find the words “sexual orientation,” “gender identity” or any other terms that expressly include LGBTQ individuals.

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