“Because of” Someone’s Sexual Orientation Sex Title VII of the Civil Rights Act of 1964 states, in part: “It shall be an unlawful employment practice for an employer . . . to . . . otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s . . . sex.” 42 U.S.C. § 2000e-2 (emphasis added). To understand the developments in the law and where we are headed, one must first understand what it currently means when someone claims that they have been discriminated “because of ” their sex under Title VII. As mentioned above, up until recently, the definition of “sex” under Title VII has not included one’s sexual preference. Historically, the definition of sex has included claims premised upon an individual’s biological sex (male and female) or an individual’s non-conformance with sex stereotypes. An example of the first type of claim is treating men and women differently, such as disciplining a male for attendance problems yet discharging a female employee in the same department and who has the same position as the male for the same attendance problems. On the other hand, a masculine looking female may have a claim based on non-conformance with sex stereotypes if she is discriminated against for not being “feminine enough.” This issue often arises with grooming policies requiring certain job classifications to wear make-up. Often, homosexual plaintiffs (and progressive courts) use this concept (non-conformance to gender stereotypes) to assert sex discrimination claims. Sexual harassment is considered a form of discrimination under Title VII as well. Sexual harassment is, in part, unwelcome conduct (based on sex) that is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive. Courts have held that any discrimination based on sex is actionable so long as it places the victim in an objectively disadvantageous working condition, regardless of the gender and/or sexual preference of either the victim or the harasser. A recent case out of the Fifth Circuit Court of Appeals involving a construction worker squarely addresses this concept. In Equal Employment Opportunity Commission v. Boh Brothers, Construction Co., LLC, 731 F.3d 444 (5th Cir. 2013), a member of an all-male bridgemaintenance crew was singled out to almost daily physical and verbal harassment because he did not conform to the crew superintendent’s view as to how a typical man should act. Both the harasser and the target of the harassment were heterosexual.
• Revising your Equal Employment Opportunity and harassment policies in your employee handbook to include gender identity and sexual preference as groups your organization seeks to protect in the workplace. • Along with revising your employee handbook, you should train your managers and employees on these updates and sensitivity to these issues. • If your organization has positions that may lead to issues of gender conformity/identity, be sensitive to that and vigilantly look for any problems. • When you have problems pertaining to sexual orientation and gender identity, speak to the individuals involved to work out the best solution for everyone. The law is confusing and different in each state. Government regulations are conflicting. As an HR professional, addressing issues in the workplace associated with gender identity and sexual orientation will not be easy. It will require flexibility, sensitivity, and thinking “outside the box.” And finally, if you are unsure what to do in a certain situation, please consult your legal counsel.
Courtney Leyes Tomlinson, Attorney Fisher & Philips, LLP ctomlinson@laborlawyers.com www.laborlawyers.com
Where are we headed and what should you do? We are in the midst of a new civil rights movement. A number of state equal employment opportunity laws protect individuals from being discriminated against on the basis of their sexual orientation and/or gender identity. And, in states that do not recognize sexual orientation and/or gender identity as a protected group, federal courts are still bending over backwards to protect LGBT individuals under Title VII. With 17 states recognizing marriage equality and federal legislation and regulations pertaining to sexual identity and preference discrimination on the horizon, you must be proactive as an HR professional. Ways in which you can get out in front of this issue (to the extent that you already have not) can include: • Auditing your benefits and compensation plans and revise accordingly to ensure that if you are providing health and medical coverage for employees’ same-sex spouses, that they are not being taxed for these benefits. You would do this only if you already provide these benefits to same-sex spouses. • Revising your FMLA policies if your organization is located in one of the 17 states that legally recognize same-sex marriage. www.HRProfessionalsMagazine.com
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