One of the major employment law changes that is likely to come about early in the Obama Administration is the passage of the Employment Non-Discrimination Act. This bill would amend Title VII to prohibit discrimination based upon sexual orientation. Prior versions of this bill included gender identity as well as sexual orientation. However, the current version of the bill know as HR 3685 that was introduced by Representative Frank only includes sexual orientation as a protected class.
Title VII currently does not include sexual orientation a protected class. However, President Obama has indicated that he would like the law to prohibit both sexual orientation as well as gender identity discrimination. Whether gender identity is ultimately included will be something to watch for. Although federal law does not currently include sexual orientation or gender identity as a protected class, many state laws do provide that sexual orientation, gender identity or both are protected classes. Currently, there are 13 states and Washington, D.C. that protect against both sexual orientation and gender identity. These states are California, Colorado,Connecticut, Iowa, Illinois, Maine, Minnesota, New Jersey, New Mexico, Oregon, Rhode Island, Vermont and Washington. In addition there are currently 7 states that protect against sexual orientation but not gender identity. These states are Hawaii, Maryland, Massachusetts, Nevade, New Hampshire, New York and Wisconsin.
For employers located in a state where neither sexual orientation nor gender identity are currently protected classes under state law, how will this new federal law affect your company? An employer would need, at the very least, to do the following:
• Amend their EEO Policy to add sexual orientation as a protected class; and
• Amend their Anti-Harassment Policy to add sexual orientation as a protected class; and
• Amend their Employment Application EEO paragraph to prohibit sexual orientation discrimination; and
• provide training for their managers and employees so that they understand what sexual orientation discrimination and harassment look like to help to prevent it.
Even if ENDA does not include gender identity as a protected class, a recent landmark case has added some protection for those who claim discrimination and/or harassment based upon gender identity. In the case of Schroer v. Billington, David Schroer applied for a position and was hired by the US Library of Congress. Mr. Schroer met with his boss prior to the commencement of employment. At this meeting he told his soon to be boss that he would be “transitioning” to a female and would be a female when he started the job. He told his soon to be boss that his name would be Diane Schroer on his first day of employment and that he would look like a woman. The very next day Mr. Schroer received a telephone call advising him that the Library of Congress was rescinding the offer of employment because he was “not a good fit for the position”.
Diane Schroer commenced a lawsuit under Title VII against the Library of Congress claiming that the decision to revoke the offer of employment was discrimination based on sex under Title VII. Remember that Title VII does not yet and did not when she brought this lawsuit prohibit discrimination based on gender identity. However, Diane Schroer’s attorney claimed that by rescinding the offer based upon Diane’s transitioning to look like a woman, the Library of Congress had discriminated against her based on her sex.
This was a landmark decision because the Library of Congress had alleged at trial in federal district court in Washington, D.C. that it had no liability because transgender people are not covered under Title VII. However, the Court held that the decision to rescind the offer after learning of the employee’s decision to transition from a male to a female, essentially changing genders, was discrimination based upon “sex” under Title VII.
Of course this won’t be an issue if ENDA ultimately prohibits discrimination based upon gender identity as well as sexual orientation. However, if ENDA limits the prohibition to sexual orientation then this is an important landmark decision because it creates precedent that transgender employees might be protected from gender identity discrimination and/or harassment by Title VII in its current version based on Title VII’s prohibition on sex and gender discrimination and harassment.
Submitted by: Melissa Fleischer, Esq.
HR Learning Center LLC