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Let’s Talk About “Sex”: Workplace Protections for LGBT Employees under Title VII

While much of the recent focus in the LGBT rights arena has been on same-sex marriage—especially in light of the Supreme Court’s ruling in Obergefell—employers should keep a close eye on the growing protections being afforded LGBT employees.

Workplace Protections for LGBT Employees under Title VII

To those who argue that LGBT employees are not protected by Title VII on the basis of sexual orientation or gender identity, the Equal Employment Opportunity Commission (EEOC) has a simple, monosyllabic response: Sex.

Within the past four years, the EEOC has held that gender identity discrimination—discrimination against a person because they are transgender—is discrimination on the basis of sex. Similarly, the EEOC has also found that discrimination against gay, lesbian, or bisexual persons based on gender or sex stereotypes is prohibited by Title VII.

Though “sexual orientation” and “gender identity” are not specifically included as protected characteristics under Title VII, the EEOC has been ardent in its mission to safeguard LGBT employees through Title VII’s prohibition of sex discrimination.

But without sexual orientation and gender identity enumerated as protected characteristics, how can the EEOC establish protections for LGBT employees? The primary tool in the EEOC’s arsenal is Title VII’s prohibition of discrimination based on sex stereotyping—discrimination against an employee who, in the mind of the employer, fails to conform to gender-based expectations.

If an employer takes an adverse employment action against a male employee because he dates men as opposed to women, the employer is discriminating against the employee because of his failure to conform to the societal expectation that men only date women. Likewise, if an employer permits harassment of an employee because the employee is transitioning from male to female, the employer is in violation of Title VII’s prohibition of sex-based discrimination.

The EEOC does not, however, stand alone in its mission. Since the EEOC began its campaign to protect LGBT employees, a number of federal courts have adopted the EEOC’s analysis of LGBT workplace discrimination claims.

Employers can no longer stand idly by when it comes to instances of potential discrimination against LGBT employees. It is clear that the lack of explicit statutory protections for LGBT employees has not hindered the EEOC or federal courts from stepping in and vindicating the rights of LGBT workers. And while Title VII has not been amended to include protections for LGBT employees, given the current climate surrounding LGBT rights in this country, such formal protections are just around the corner—and employers need to be ready.

© 2019 Schiff Hardin LLP

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Schiff Hardin represents management in labor matters and employment-related litigation, and provides counsel to employers with respect to all legal aspects of employer-employee relations. Our firm's labor law practice encompasses both the private sector and the public sector for large and small employers in a broad range of markets and industries. Our Labor and Employment Group works cooperatively with attorneys in our Employee Benefits and Executive Compensation Group to provide our clients with comprehensive assistance in every aspect of the employer-employee relationship.

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