January 24, 2021

Volume XI, Number 24


January 22, 2021

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Transgender and Sexual Orientation Anti-Discrimination Protections — Maybe Not Yet the Law of the Land, But Your Policies Better Include Them

Though most Americans do not seem to realize it, anti-discrimination legal protections in employment for transgender, gay, bisexual, and lesbian (LGBT) employees are not uniform across the U.S. In fact, the federal Employment Nondiscrimination Act, which would amend Title VII to explicitly include these protected categories, has never passed. Therefore, it is still legal to fire, discipline, or even harass employees in the many states and local jurisdictions that lack these employment law protections.

But does that reasoning really hold true? The ever-evolving state of the law in this area shows this reasoning is weak and provides strong support for employers, including protections in equal employment opportunity (EEO), anti-harassment, and anti-retaliation policies for all their LGBT employees.

Transgender employees are most directly protected from employment discrimination under current laws such as Title VII —by the legal theory of “gender stereotyping.” The U.S. Supreme Court back in 1989 ruled that employers may not decide to fire or otherwise discriminate in employment due to an employee’s failure to conform with norms of that person’s gender. A female who acts too “manly” would be covered by this protection; but, so too would a female who starts to transition to become a man and whose employer fires him for starting to act too “manly.” Thus, even without express protections under federal Title VII, a transgender employee may be protected from discrimination. The Equal Employment Opportunity Commission (EEOC) and federal courts of appeal around the country have readily found this gender stereotyping theory prohibits such discrimination against the transgendered. The U.S. Department of Justice also takes the position that transgender employees are always covered by Title VII. As such, current law supports all employers including this protected category in their policies.

This same theory of gender stereotyping has also been found to apply, though less frequently, to claims by gay or lesbian employees. Effeminate gay men, for example, have been found by courts to state claims under Title VII for perceived failure to conform to a masculine gender role.

At the same time that courts and administrative agencies are recognizing these types of lawsuits by LGBT employees, local and state lawmakers are also continuing to add these types of protections. Utah became the most recent state, in early 2015, to protect LGBT employees from discrimination. Under the ever-evolving laws in this area, multistate and multi-city employers never know exactly when their employees may be protected by such anti-discrimination statutes.

Finally, federal contractors are now required to provide anti-discrimination protections to LGBT employees, regardless of whether the jurisdiction in which the employees work have such protections under state or local laws.

Employers that do not currently include “gender identity or expression” and “sexual orientation” as protected categories in their employment policies should strongly consider adding them for the legal protections they will provide.

© 2020 Foley & Lardner LLPNational Law Review, Volume V, Number 138



About this Author

John S. Lord Jr., Foley Lardner, Arbitration Attorney, Litigation Lawyer,

Jack Lord is a partner and litigation lawyer with Foley & Lardner LLP. He focuses his practice on employment litigation and arbitration cases and has tried matters ranging from breach of contract, disability and national-origin discrimination claims to pregnancy and FMLA claims. He works with private and public employers in matters involving labor and employment law compliance. Mr. Lord regularly defends employers in class and collective action lawsuits. He has defended numerous entities that operate “public accommodations” against claims under Title III of the...