Case Study_ Buonanno v. AT&T Broadband, LLC 313 F. Supp. 2d 1069 (D. Colo. 2004)

Chapter 10

Sexual Orientation and Gender Identity Discrimination

Statutory Basis

It shall be an unlawful employment practice for an employer—

(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s . . . sex. [Title VII of the Civil Rights Act of 1964, as amended. 42 U.S.C. § 2000e-2(a).]

[N]or shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. [Amendment XIV of the U.S. Constitution.]

The EEOC, which is statutorily responsible for interpreting and enforcing Title VII, has determined that although Title VII does not explicitly include  sexual orientation  and  gender identity , based on Supreme Court and other case law holding that employment actions motivated by gender stereotyping are unlawful sex discrimination and other court decisions, the law’s prohibition against gender discrimination does. If you have been paying attention to the opening Statutory Basis section for all the other chapters, you realize that this one is quite different. Over the past several years the EEOC has set forth its position in several published decisions that explain the legal basis for this determination and give examples of what would be considered unlawful. In reaching this conclusion, according to the EEOC, it has not recognized any new protected characteristics under Title VII. Rather, it has applied existing Title VII precedents to gender discrimination claims raised by LGBT individuals. “What You Should Know About EEOC and the Enforcement Protections for LGBT Workers.” https://www.eeoc.gov/eeoc/newsroom/wysk/enforcement_protections_lgbt_workers.cfm

sexual orientation

Whom one is attracted to for personal and intimate relationships.

gender identity

How one identifies for male/female purposes, based on a combination of genetics and environment, including, among other things, transgender.

page 474 

Out of the Closet

See Exhibit 10.1, “Terms to Know.”

“Look!” the angry gentleman in the audience said gruffly as the diversity consultant walked into the room and up to the stage in preparation for conducting a training session. “Does this diversity training mean that I have to deal with homosexuals? Because if it does, I’m not doing it! Homosexuality is against my religion and I just don’t think it’s right!”

Exhibit 10.1  Terms to Know

Terms may evolve over time to reflect changes in thinking and/or preferences within the LGBT community.

Catalyst offers these definitions but encourages readers to recognize that different language may be used by different people, companies, and countries. Also, it is important to respect the language individuals use to identify themselves, regardless of how they are labeled by others.

Bisexual: A person whose emotional, sexual, or romantic attractions are to both women and men. Bisexuals need not be “equally” attracted to, or have had equal sexual experience with, both sexes. Nor do they need to have attractions toward both sexes at the same time.

Closeted/In the closet: LGBT individuals who do not openly disclose their sexual orientation to others.

Coming out of the closet: The process of self-acceptance and/or disclosure of LGBT identity to others. People can disclose to none, some, or all of the people they know.

Gay/Homosexual: A woman or a man whose emotional, sexual, or romantic attractions are primarily to members of the same gender.

Gender expression: How an individual manifests a sense of femininity or masculinity through appearance, behavior, grooming, and/or dress.

Gender identity: One’s inner sense of being a woman or a man, regardless of biological sex; different from sexual orientation.

Heterosexism: The attitude that heterosexuality is the only valid sexual orientation. Heterosexism denies, denigrates, and stigmatizes any non-heterosexual form of behavior, relationship, or community.

Homophobia: Disapproval of, fear of, hatred of, or hostility toward people who are identified as, or assumed to be, LGBT.

Intersex: Individuals with sex chromosomes or biological/physical characteristics that are neither exclusively female nor male.

Lesbian: A woman whose emotional, sexual, or romantic attractions are primarily to other women.

LGBT: The acronym most commonly used in Canada and the United States to refer to the lesbian, gay, bisexual, and transgender community. The acronym can vary in a number of ways, including GLBT and GLB, and can include additional letters, such as Q (queer; also questioning), I (intersex), and A (straight ally).

Non-LGBT: Anyone who does not identify as LGBT; most commonly refers to straight/heterosexual individuals.

Out employee: An employee who discloses his or her LGBT identity to a few, some, or all of his or her co-workers.

Queer: A fluid term with numerous meanings. It is commonly used to describe sexual orientation and/or gender identity or gender expression that does not conform to heterosexual norms. The term is often used to refer to the LGBT community in general. It can be either a positive or a negative term, depending on the context in which it is used.

Questioning: Someone who is questioning their gender, sexual identity, or sexual orientation.

Sexual orientation: A term commonly used to refer to a person’s emotional, romantic, or sexual attraction to individuals of a particular gender (women or men).

page 475Straight/Heterosexual: A person whose emotional, sexual, or romantic attractions are primarily to members of the opposite sex.

Straight ally/LGBT supporter: An individual who identifies as non-LGBT and who supports the LGBT community in a direct way, such as attending LGBT ERG activities, acting as an executive sponsor, or volunteering at LGBT events.

Transgender: People who identify with the characteristics, roles, behaviors, or desires of a gender different from the one they were assigned at birth. This is an umbrella term that can be used to include transsexuals, cross-dressers, and other gender-variant people; some may use the umbrella term trans-identified.

Transsexual: Transsexuals change (or seek to change) their physical characteristics to a gender different from the one they were assigned at birth—for example, individuals born as males seek to change their sex to female. These changes can include sex reassignment surgery and/or hormone therapy.

Two-spirit: The term used by contemporary Native Americans and Aboriginal people in Canada to describe a masculine spirit and a feminine spirit living in the same body.

Christine Silva and Anika K. Warren, “Building LGBT Inclusive Workplaces: Engaging Organizations and Individuals in Change.” Catalyst.org, June 2009. Copyright © 2009 by Catalyst Inc. All rights reserved. Used with permission. http://www.catalyst.org/publication/328/building-lgbt-inclusive-workplacesengaging-organizations-and-individuals-in-change.

Even though it has been estimated that LGBT1 employees make up between 3.15 and 17 percent of the workplace population,2 this employee’s attitude is not unique. In no particular order, some of the events that have provoked such reactions and provide context for where we now find ourselves include

· An Arkansas farmer acknowledges spreading three tons of manure along the route of a gay rights parade, saying he was exercising his constitutional right to free speech.3

· A Mississippi high school cancels its prom after a female student wanted to bring a female date.4

· The day before 2014 Valentine’s Day, the Kansas House passes House Bill 2453 by a vote of 74 to 29, protecting religious individuals, groups, and businesses that refuse service to same-sex couples, especially those contemplating marriage, even though the state banned same-sex marriage.5 The measure comes after several lawsuits in other states, including one in Kentucky against a Christian T-shirt printer who refused to print T-shirts for the city’s annual gay pride event,6 one in Oregon where a Christian bakery refused to make a wedding cake for a lesbian couple,7 and one in New Mexico where a Christian wedding photographer refused to take pictures for a lesbian wedding.8 Claimants in jurisdictions with antidiscrimination laws in public accommodations that included sexual orientation won suits for violations of their civil rights. However, the Kansas proposal was just the opening shot fired. Shortly thereafter the Arizona house and senate passed such a measure, and it was quickly introduced in the Georgia legislature.9 After widespread protests, Arizona Governor Jan Brewer vetoed the bill in 2014, as did Georgia’s governor once the NFL threatened to boycott Atlanta for the Super Bowl.

· page 476Shorter University requires more than 200 employees to sign a “Personal Lifestyle Statement” rejecting homosexuality.10

· In 2012, Toronto Blue Jay’s shortstop Yunel Escobar plays on the field with a homophobic slur written on an eyeblack sticker (patch athletes use to reduce the sun’s glare) under his eyes. The patch said “Tu ere Maricon,” for which the most common translation is “You are a faggot.” In 2017, Kevin Pillar of the same team, was suspended for two days for yelling a homophobic slur at Atlanta Braves pitcher Jason Mott. “This is not who I am and I will use this as an opportunity to better myself,” he said.11

· The U.S. Treasury Department announces on August 29, 2013, that it would recognize any legally married gay couple, even in the then-37 states that did not recognize same-sex marriages. In addition, the Defense Department announced it would begin offering full spousal and family benefits to same-sex spouses of military personnel in alignment with the June 2013 U.S. Supreme Court’s striking down of the Defense of Marriage Act’s denial of federal marriage benefits to lawfully married same-sex couples. In Texas, Mississippi, Louisiana, and Oklahoma, the National Guard says that it would not process claims from gay couples, despite the Pentagon’s authorization, without the spouses traveling to federal military installations sometimes located a long distance away.12

· On June 26, 2015, the U.S. Supreme Court, in Obergefell v. Hodges, 13 outlaws as an unconstitutional denial of equal protection, state laws prohibiting same-sex marriage. Marriage between members of the same gender became legal in every state.

· In 2013 the Boy Scouts of America ended its long-standing blanket policy against admitting openly gay members but still excluded gays as Scout leaders. In 2015, it lifted the ban on gay leaders but allowed an exemption for troops with religious affiliations.14

· A firefighter who was allegedly harassed because he stood up for his lesbian daughter after a “condemnation of homosexuals” by his captain is forced to retire after being dunned by his captain and others even after he transferred.15

· Minnesota Vikings punter, Chris Kluwe charges that he was released from the team because of his activism for same-sex marriage rights even though is heterosexual.16

· The New York attorney general challenges the NFL for asking draft picks about their sexual orientation and enters into a settlement agreement with them in 2013 requiring, among other things, antidiscrimination posters to be placed in team locker rooms.17

· Republican California Governor Arnold Schwarzenegger causes an uproar when he calls Democratic legislators who oppose his budget “girlie men.”18

· A seven-year-old is scolded and forced to write repeatedly “I will never use the word ‘gay’ in school again” after he told a classmate about his lesbian mom in response to a question during recess by a classmate about the boy’s parents.19

· page 477In 2010, after 17 years, Congress repeals “Don’t Ask, Don’t Tell” for gays in the military.20

· The Episcopal Church consecrates its first openly lesbian bishop in 2010.21

· The 2010 Census reports the number of married same-gender couples for the first time. The 2020 Census will not count gays and lesbians.22

· In 2010, President Obama issues a memorandum for the secretary of Health and Human Services requesting that she initiate appropriate rule making and other relevant provisions of law to ensure that hospitals that participate in Medicare or Medicaid respect the rights of patients to designate visitors and not deny visitation privileges on the basis of, among other things, sexual orientation or gender identity.23 The move came after a lesbian and the three children of her and her partner were denied visitation to see her partner, who suffered a brain aneurysm. The partner died the next day.24

· As part of “dirty” recruiting tactics, parents of highly sought-after female high school basketball players are told that female coaches of competing teams are lesbian in what is called the “fear of a gay boogeyman who will make their daughters choose a lesbian sexual orientation” (partly in response, the NCAA is studying whether homophobia is a reason that the number of female head basketball coaches dropped from 79 percent in 1977 to 63 percent in 2002).25 In 2017, female coaches said it was still not comfortable to come out in women’s college basketball.26

· In 2009, the American Psychological Association issues a statement that mental health professionals should not tell gay clients they can become straight through therapy.27

· The California governor signed into law a ban on gay conversion therapy, calling it “quackery” in 2012.28

· The U.S. Supreme Court rules in Snyder v. Phelps 29 that anti-gay protests at funerals of American soldiers are protected by the First Amendment’s freedom of speech. The Court affirms the appellate court’s decision that the protests with signs such as “God hates fags,” were “utterly distasteful” but protected because they were related to “matters of public concern.” The protests were by members of the Westboro Baptist Church in Topeka, Kansas, who contend that the death of American soldiers is God’s punishment for the country’s tolerance of homosexuality. They have held over 43,000 such protests since 1991.30

· When University of Missouri star defensive end Michael Sam returned to the university with his teammates to claim the Cotton Bowl award after announcing he was gay just before attending the NFL combine, over 2,000 people showed up in the February 2014 cold, locked arms, and turned their backs on the 14 Westboro demonstrators in an effort to support Sam and block him from even seeing the Westboro demonstrators.31

· Two days after unanimously requesting that the county attorney find a way to enact an ordinance banning gays and lesbians from living in the county (saying, “We need to keep them out of here”), the Rhea County, Tennessee, commissioners withdrew the request because of the outcry outside the county.32

· page 478New York then-gubernatorial candidate Carl Paladino calls gay pride parades “disgusting,” but lesbian sex “awesome.”33

· Walmart, the largest private employer in the United States, joins many other employers and extends benefits to LGBT employees same-sex domestic partners.34

As you can see from this sprinkling of just a few of the things that have happened in the recent past, LGBT issues push a lot of buttons in society in general, and the workplace is just a microcosm of society. Though a bit gruff, the employee’s assertion that homosexuality was against his religion, was a manifestation of that. We have no doubt that the employee spoke for many others when he made his statement. The good thing is that he got it out onto the table where it could be discussed, put into perspective, and fitted into what his employer wanted the program to accomplish: less exposure to unnecessary liability for violations of the law on this and other bases of discrimination. Since we understand that this sentiment is a fairly common one, let’s take a bit of time up front to discuss it and give you some things to keep in mind as you go through the chapter. Just so you know, he was much comforted by what he learned in the session and said he had never thought about the issues this way before. He even said thank you! :-)

From the battle with the Boy Scouts of America over whether the Philadelphia chapter could continue to discriminate against gays and stay in the city-owned building it had been in for 80 years, paying $1 annual rent rather than the $200,000 fair market value when the city had an antidiscrimination policy, to celebrity and adoptive mother Rosie O’Donnell announcing that she is a lesbian and taking up the issue of Florida law not permitting adoptions by gays and lesbians, to whether a transgender employee can lawfully sue for the use of certain toilet facilities, to the fining of basketball superstar Kobe Bryant for calling a referee a “faggot” in the heat of a game, to the refusal of the city clerk to handle same-sex marriage license applications even after same-sex marriage became legal, the issues of sexual orientation and gender identity have been, and continue to be, debated and discussed not only in the United States, but all across the world, in every conceivable context. The issues have vast implications for people’s everyday lives. Most people need to work in order to survive, so workplaces consist of all kinds of people. That means that anything that is of any great social importance generally ends up finding its way into the workplace. The issues of sexual orientation and gender identity are no different. The increasing prominence of the issues in the workplace, the legal implications arising therefrom, and the very convoluted patchwork of rules make it essential that we include coverage here, despite the fact that the language of Title VII, as well as most of its history, does not prohibit discrimination on these bases.

Unlike the other Title VII categories, coverage of sexual orientation and gender identity is not quick or easy. Since LGBT employees were not covered by Congress in the words of the statute, the law is a very, very crazy quilt of federal, state, and local laws, executive orders, and court decisions. On top of that are employers’ private rules. With same-sex marriage now the law of the land, it seems it would only be a matter of time before the issue is resolved and uniformity brought to bear either by Congress or the U.S. Supreme Court. After all, it page 479seems rather incongruous for the Supreme Court to recognize that it is unconstitutional to discriminate regarding the issue of same-sex marriage, but for Congress not to do so regarding the issue of employment discrimination. It is not at all inconceivable that a person could happily marry their soul mate on Saturday and be fired for doing so when they return to work on Monday. What is legal in Wisconsin, may not be legal in North Carolina. What is not legal in Iowa for non-governmental employees may be legal for government employees. What is not legal in the state of Georgia may be legal in Atlanta. Protections or benefits denied by the federal or state government may be granted to employees who work for a certain employer in that state. Even within the federal government, Congress has not included protections for LGBT employees, but the agency it created to enforce workplace discrimination laws has. The legality, protections, or rights may not arise from a law, but from a court decision, agency determination, local ordinance, or an employer. It is truly a crazy quilt of protection—or lack thereof.

Seventeen state laws and the District of Columbia35 (see Exhibit 10.2, “State Laws Banning Workplace Discrimination on the Basis of Sexual Orientation or Gender Identity”) prohibit both LGB and T employees. There are 29 states without protection for sexual orientation and 33 without protection on the basis of gender identity. In addition, hundreds of local ordinances, and thousands of workplaces, including 91 percent of Fortune 500 companies,36 include LGBT employees as part of their employment discrimination laws and policies37 and the 7th Circuit Court of Appeals38 has determined so also. As of 2012, the EEOC now accepts complaints of gender identity discrimination as a type of gender discrimination and as of 2015, claims of discrimination against gay, lesbian, or bisexual employees as a type of gender discrimination. New guidance and edicts come into existence virtually every day via legislatures, court opinions, agency regulations, and employer policies and guidelines.

Exhibit 10.2  State Laws Banning Workplace Discrimination on the Basis of Sexual Orientation or Gender Identity

· State laws prohibiting discrimination based on sexual orientation, gender identity, or both:

California (1992) (*2003)	New Hampshire (1998)
Colorado (2007)*	New Jersey (1992) (*2007)
Connecticut (1991) (*2011)	New Mexico (2003)*
Delaware (2009) (*2013)	New York (2003)
Hawaii (1991) (*2011)	Nevada (1999) (*2011)
Illinois (2006)*	Oregon (2008)*
Iowa (2007)*	Rhode Island (1995) (*2001)
Maine (2005)*	Vermont (1991) (*2007)
Maryland (2001)	Washington (2006)*
Massachusetts (1989) (*2012)	Wisconsin (1982)*
Minnesota (1993)*	Washington, D.C. (1977) (*2006)

· page 480An executive order prohibits discrimination in the federal civilian workforce and mandates that security clearances not be denied based on sexual orientation.

· State courts, commissions, agencies, or attorney generals have interpreted the existing law to include some protection against discrimination against transgender individuals in

Florida

New York

· In 2012, the Equal Employment Opportunity Commission determined that gender identity discrimination in employment violates Title VII’s prohibition against gender discrimination; it extended this to sexual orientation in 2015.

· Hundreds of cities and counties prohibit discrimination in public and/or private employment. Jurisdictions include

Fayetteville, AR	Lawrence, KS	Portland, OR
Phoenix, AZ	Louisville, KY	Philadelphia, PA
Boulder, CO	New Orleans, LA	Charleston, SC
Wilmington, DE	Detroit, MI	Minnehaha County, SD
Broward County, FL	St. Louis, MO	Austin, TX
Atlanta, GA	Durham, NC	Salt Lake County, UT
Ames, IA	Albuquerque, NM	Alexandria, VA
Chicago, IL	New York, NY	Seattle, WA
Bloomington, IN	Toledo, OH	Morgantown, WV

*Law also includes protection based on gender identity.

Source: Human Rights Campaign, www.hrc.org.

As exhibited by the gentleman in the opening paragraph (one of your authors was actually the consultant involved), sexual orientation discrimination is also one of the types of discrimination that may call into question ideas we hold dear and wish to protect. As a result we may think of this type of discrimination differently—as more justifiable—than we do others. In order to prevent those thoughts from turning into actions that lead to litigation and avoidable liability for the employer, we must learn to view the costly and avoidable matter in its proper legal workplace perspective.

As you read the chapter, keep this thought in the front of your mind: The intent of this chapter is not to get you to “accept” anyone’s sexual orientation or gender identity. This chapter is not about going against your religious dictates, moral values, or conscience. As with our other chapter topics in the text, you are free to believe whatever you wish. Before choosing to engage in activity that may cause the employer liability for discrimination and result in your termination, keep in mind that this is the employer’s workplace, not yours. Employees don’t have the right to engage in personal activities that will cause unnecessary liability page 481or embarrassing publicity for their employer. Since this is the employer’s workplace, the employer is the one in charge of such things. If the employer has hired someone you don’t like, for whatever reason, you have to decide what it’s worth to you. Do you create trouble for the employer and run the risk of getting fired, or do you conduct yourself in a professional manner, keep your personal issues to yourself, continue to do the job you were hired to do, and collect a check? If you feel like you can’t do the latter, then you are free to seek employment elsewhere. But if you choose to stay, you have no right to impose your purely personal beliefs on the workplace through the decisions you make about the acts you do, in a way that increases the employer’s liability. If you think your beliefs do not “permit” homosexuality, then don’t be LGBT. Don’t take your LGBT co-worker to lunch. Don’t take him or her home for dinner. But refusing to work with him or her as required or otherwise treating the co-worker in ways that discriminate and expose the employer to liability is simply not an option.

If this sounds like we have an agenda, then you heard us correctly. Our agenda is to protect employers from unnecessary costly and liability and negative and embarrassing publicity. Our job is to make sure that if what you believe is not in sync with the law, that you understand the difference and are able to do what you need to do at work to prevent unnecessary liability. As always, this chapter tries to teach you not only about the law, but also the context and history of the issue so that when you have to make workplace decisions unfamiliar to you, you understand what is involved and how the law views it. This is especially important as things in this area are changing so rapidly (see Exhibit 10.3, “Rapidly Changing Fortune 500 Sexual Orientation and Gender Identity Policy Percentages”) and new issues seem to arise daily.

Exhibit 10.3  Rapidly Changing Fortune 500 Sexual Orientation and Gender Identity Policy Percentages

	Fortune 500
	2002		2008		2013		2014
Sexual Orientation Policy	61%		88%		88%		91%
Gender Identity Policy	3%		25%		57%		61%

Source: HRC: The Cost of the Closet and the Rewards of Inclusion, at 5. http://www.hrc.org/resources/the-cost-of-the-closet-and-the-rewards-of-inclusion

With that out of the way, let’s explore this area and see what’s here.

Despite the stereotypes of gay males as florists, designers, or interior decorators, a survey by the Chicago marketing research firm Overlooked Opinions39 found that more gay males work in science and engineering than in social services, 40 percent more are employed in finance and insurance than in entertainment and the arts, and 10 times as many work in computers as in fashion. (See Exhibit 10.4, “Heterosexual Realities Questionnaire.”) Once, gays and lesbians in the workplace were virtually invisible, but diverse circumstances, some of which were provided for you earlier in the chapter, have begun to change that in dramatic ways.

page 482 

Exhibit 10.4  Heterosexual Realities Questionnaire

The questions below provide a somewhat humorous yet insightful look at some of the more frequent assumptions surrounding gays and lesbians, which affect how they may be perceived in the workplace and society at large. The approach of reversing the questions subtly challenges commonly held heterosexually based notions.

1. What do you think caused your heterosexuality?

2. When and how did you first decide you were heterosexual?

3. Is it possible your heterosexuality is just a phase you may grow out of?

4. Is it possible your heterosexuality stems from a neurotic fear of others of the same gender?

5. Heterosexuals have histories of failures in gay relationships. Do you think you may have turned to heterosexuality out of fear of rejection?

6. If you’ve never slept with a person of the same gender, how do you know you wouldn’t prefer that?

7. To whom have you disclosed your heterosexual tendencies? How do they react?

8. Your heterosexuality doesn’t offend me as long as you don’t try to force it on me. Why do you people feel compelled to seduce others into your sexual orientation?

9. Why do you insist on being so obvious and making a public spectacle of your heterosexuality by holding hands or kissing in public? Can’t you just be what you are and keep it quiet?

10. How would the human race survive if everyone were heterosexual like you, considering the menace of overpopulation?

11. Why do heterosexuals place so much emphasis on sex?

12. How can you be heterosexual if you’ve never had sex?

Source: Adapted from Martin Rochlin, Ph.D., by Dr. Miranda Pollard, University of Georgia.

You have the blessing (or curse, depending on your view) of actually living history as it relates to this issue. There have been dramatic changes in just the past 25 years or so (that may sound like a long time to you, but it is but a blink in historical terms! :-)). From never speaking the word gay on TV, to having award-winning pioneering TV shows like Will and Grace, Queer Eye for the Straight Guy, The L Word, or Glee be top performers and pave the way for award winning shows like Scandal, How to Get Away with Murder, and Orange Is the New Black to have prominent LGBT characters, the societal landscape has changed. According to the Human Rights Campaign, the nation’s largest LGBT advocacy group, in 2013, hundreds of major businesses signed onto historic friend-of-the-court (amicus curiae) briefs to the U.S. Supreme Court urging them to strike down the Defense of Marriage Act and California’s Proposition 8 banning gay marriage; over 120 businesses joined a public coalition to urge Congress to pass ENDA, the Employment Non-discrimination Act that would amend Title VII to prohibit workplace discrimination on the basis of sexual orientation and gender identity, as well as over 92 for the broader Equality Act that would extend antidiscrimination legislation past just the workplace to housing, transportation, receipt of federal page 483funds, retail outlets and services and juries; record numbers of businesses updated their non-discrimination policies and benefit packages ahead of the federal mandates to do so in order to support their LGBT employees and their families; and over 300 companies came out in support of gay marriage.40 The number of major employers covering medically necessary reassignment surgery for transgender employees has risen significantly, including many Fortune 500 companies, and many major employers have implemented more robust and supportive inclusion guidelines for their transitioning employees. When HRC’s Corporate Equality Index, the “gold standard” of corporate equality for LGBT treatment in the workplace, began in 2001, 13 businesses earned a score of 100 percent. In the 2017 report, the number was 515.41 You may wonder how it happened.

These changes have all been a function of a confluence of a combination of a number of fairly recent events that really began to put LGBT issues on the map in a big way including

· The impact of AIDS in society and in the workplace.

· The military’s “Don’t Ask, Don’t Tell” policy.

· The 1992 presidential election in which President Bill Clinton voiced support for gays. It was the first time a presidential candidate had dealt with the issue.

· The 1993 March on Washington for Lesbians, Gays, and Bisexuals, which brought together unprecedented numbers of participants to call for non-discrimination in employment and equity.

· Clinton’s later support for the Employment Non-discrimination Act (ENDA) prohibiting workplace discrimination against gays and lesbians, which has not yet passed.

· Clinton’s appointment of over 150 gays and lesbians in his administration, including an ambassador and cabinet-level positions (see Exhibit 10.5, “Lesbian Confirmed for No. 2 HUD Post”).

· Colorado’s attempted constitutional ban on protection for gays and lesbians, which the U.S. Supreme Court struck down, and many other events put the issue of gays and lesbians on the national agenda for the first time.

· President Obama, in 2012, announced that he was “enlightened” about same-sex marriage and now supported the freedom to marry. When the U.S. Supreme Court issued its Obergefell decision upholding same-sex marriage in 2015, the White House was lit up in rainbow lights to show its support, as were iconic buildings all over the country.

After President Clinton became the first president to ever address gay and lesbian issues, and in such a public way, 1993 was a watershed year and a turning point for gay and lesbian issues. On April 25, 1993, the Cable News Network (CNN) provided day-long national television coverage of the convergence of nearly a million people, LGBT and straight, on Washington, D.C., for the March on Washington for Lesbian, Gay, and Bisexual Equal Rights and Liberation. One of the largest marches ever held, it was clear that the LGBT community could no longer be ignored.

page 484 

Exhibit 10.5  Lesbian Confirmed for No. 2 HUD Post

On May 24, 1993, President Clinton’s nominee for assistant secretary of housing and urban development, Roberta Achtenberg, was confirmed by the Senate 58–31 after a three-day debate. Ms. Achtenberg was a member of the San Francisco Board of Supervisors who had won numerous awards for her community service, and the Senate’s vote made her the first open lesbian appointed to such a high government position.

During the Senate debate, Senator Jesse Helms (R-N.C.) brought up that Ms. Achtenberg was seen with her partner, municipal court judge Mary Morgan, kissing and hugging while leading a 1992 Gay Pride parade. The Christian Action Network sent a copy of the videotape to every member of the Senate, and senators received thousands of calls from opponents after being urged to call by TV shows like Reverend Pat Robertson’s 700 Club.

During the Senate debate, Senator Dianne Feinstein (D-Calif.), former mayor of San Francisco, said, “Today we have a chance to turn our back to prejudice. Today we can vote down the politics of hate and take a small step to make sure our government is representative of all the people it seeks to serve.”

Achtenberg resigned in 1995 to run for elected office in San Francisco. Since Achtenberg’s appointment there have been several other public office holders, including the man who could be America’s first openly transgender male judge, Henry Sias of Pennsylvania, joining the two female transgender judges in the United States.

Since that time, states have seen a good deal of LGBT legislation and courts have seen cases on issues ranging from parental rights to military discharges; from domestic partner benefits (domestic partnerships preceded gay marriage as legal status for committed gay and lesbian relationships) to gay marriage; from refusal to bake a wedding cake or take photos for same-sex weddings, to refusal to make T-shirts or posters for Gay Pride events; and from hate crimes legislation protecting LGBT employees from workplace discrimination. Things change very quickly in this area, in historical terms, so to avoid liability, employers must work diligently to make sure their policies are consistent with legal and other changes.

For instance, in 2009, the majority of Americans were against same-sex marriage.42 In April 2011, a CNN poll showed that for the first time, a majority of Americans favored allowing gays and lesbians to have the same right to marry as non-gays. In 2013, a Gallup poll showed that 52 percent of Americans favored equal rights for such unions and would legalize gay marriage nationwide.43 In 2015, same-sex marriage become law throughout the country. HRC began publishing its Corporate Equality Index (CEI) in 2001, rating companies on their commitment to LGBT issues in the workplace and beyond. That indicator has quickly become an important indicator of a company’s LGBT-friendly environment. Most of the Fortune 500 companies participate, as well as other companies, and more companies join each year and use their rating status as a marketing tool.

That is a huge change in such a short period and it is an interesting indicator of employer movement in this area. For instance, in 2014, the year before same-sex marriage became legal, 90 percent of CEI-rated companies offered domestic partner benefits even though it was not required by law. Eight years ago, in 2009, page 48549 companies offered transinclusive health care coverage; in 2017, the number is an astonishing 647. In fact, that number was a substantial increase from even the 511 employers just the year before. More than 90 percent of employers have both sexual orientation as well as gender identity employment protections for their employees. The area moves rapidly and employers need to know about the issues.

Earning a living is a necessity for most people, as is the issue of being treated with respect, so issues related to LGBT employees are increasingly surfacing in the workplace and has become one an employer must deal with. There is a growing realization that LGBT people are everywhere (and always have been) and should be judged for who they are as people and what they bring to the table, not for the singularly irrelevant measure of the private matter of who they have sex with or what the body parts are under their clothing. Neither issue has any more a legitimate place in workplace considerations for LGBT employees than it does heterosexual employees for whom it never arises. In commenting on the first federal appellate court decision to interpret Title VII as including sexual orientation as a type of gender discrimination on April 4, 2017,44 Greg Nevins of Lambda Legal, who represented the professor, Kimberly Hively, said, “Federal law is catching up to public opinion: 90 percent of Americans believe employees should be valued for how well they do their jobs, not who they love or what they are.”45 With the rules changing almost daily, and more state and local legislation and court decisions both for and against civil rights for gays, it has become necessary for employers to know what their potential legal liability is in this area.

A fairly recent development has been the emergence of non-discrimination policies and LGBT employee support groups (also called affinity groups or networking groups) within the workplace. There are well over 2,000, including groups in over 300 Fortune 500 companies, many colleges and universities, nonprofits, unions, and state and local governments. Now listed among such employers are Apple Computer, Digital Equipment, AT&T, Coca-Cola, IBM, Kodak, DuPont, Hewlett-Packard, Lucent Technologies, Sun Microsystems, Pacific Gas and Electric Company, Walt Disney Co., J. P. MorganChase & Co., Goldman Sachs, Merrill Lynch, and United Parcel Service, to name a few. The groups tackle such issues as workplace hostility, extending employee benefits, making sure that same-sex partners are welcome at company social functions, and generally making the workplace less threatening to the work life and workplace progress of LGBT employees and thus more productive for the employees and, ultimately, the employer. Remember the earlier statistic that 35 percent of LGBT employees had to hide their sexual orientation or gender identity at work. That has real-life implications that these groups can help with, if for no reason other than much needed support.

After a spate of gay teen suicides due to bullying caused Fort Worth City Councilman Joel Burns to give an impassioned city council speech on the difficulties facing gay youth, urging teens to know that things do get better, the YouTube video of the speech went viral.46 Price Waterhouse Coopers, a top accounting firm, then made its own video of its gay and lesbian employees urging struggling teens to know that things do get better. Other companies did it also, such as Google and Facebook. This should give you some idea of companies’ approach to page 486this area; not only are they trying to support their LGBT employees, but they are also reaching beyond the workplace to their communities. For that reason, it is an issue anyone involved with employment law should be aware of.

Many companies sponsor their LGBT employees at events like Gay Pride Month, a nationwide celebration each June, culminating in a parade comprised of many types of contingents, including businesses. Companies provide employees with information and novelty items to be passed out to attendees or T-shirts with slogans such as “ABC Company Supports Its Gay and Lesbian Employees.” (See Exhibit 10.6, “Delta Airline’s Support for Its Gay Employees.”) A recent poll showed that this type of workplace support is important to 71 percent of the gays and lesbians polled. The 2014 Corporate Equality Index found that 79 percent of CEI-rated businesses reported some form of public engagement with the LGBT community.47

Exhibit 10.6  Delta Airline’s Support for Its Gay Employees

Delta Air Lines is a great example of how business has incorporated this new and evolving approach to diversity and LGBT issues into its corporate belief system and its way of doing business. One of Delta’s “Rules of the Road” core values is to embrace diverse people. Along with this, Delta offers health and travel benefits for domestic partnership and has realigned its benefits to recognize same-sex marriages. In addition to its corporate policies, Delta has established the Gay/Lesbian Employee Network (GLEN), a volunteer organization whose mission is to make Delta the best place to work by promoting inclusion, respect for differences, equal opportunity, education, and diversity in the workplace.

During the month of June, which is designated “Pride Month,” Delta raised the “Rainbow Pride Flag” at the entrance of its World Headquarters in Atlanta, Ga, as well as displaying several pride flags throughout its campus. Delta also took a bold stance against legislation that would limit business from providing service to LGBT customers.

Delta is very active within the community participating in Pride events, AIDS Walk and other LGBT events in several states. Delta strives to recruit qualified employees and minority businesses by participating in conferences such as Reaching Out MBA and National Gay Lesbian Chamber of Commerce. Delta is also active with several local and national organizations such as Gay Lesbian Alliance Against Defamation (GLAAD), amfAR, Human Rights Campaign (HRC), and International Gay & Lesbian Travel Association (IGLTA).

Courtesy of Tonie D. Tobias/Delta Airlines

LO1

Gay Pride Month is not just a fun time. And despite what your local news coverage may choose to show, it involves not just parade participants with their behinds hanging out of leather clothing or “freaky” looking characters. It is actually the commemoration of the historic events of June 1969. Being LGBT is still all too often a life-threatening proposition, but it was even more so then. As a result, most in the LGBT community led an extremely closeted existence and often congregated in gay bars just to be sure of the relative safety of their surroundings. Since they were considered social outcasts of the highest order, they did not want to risk their own lives, or embarrass their families and friends by being honest about who they were. Fearing discovery made them a very vulnerable group that rarely fought against their circumstances or abuse. They were page 487banned from government employment because of the potential for blackmailing them to learn government secrets due to their vulnerable enforced secretive lives. Gay bars, often the only place the LGBT community could go and feel accepted for who they were, routinely experienced raids by police officers for no apparent reason, and the patrons were hauled off to jail for one minor infraction or another. Fearing publicity, most patrons just went quietly.

In June 1969, this changed. When plainclothes police officers raided the Stonewall Inn in New York’s Greenwich Village, there was uncharacteristic resistance by the bar patrons, joined by people on the street, that resulted in a weekend of riots. The next year in New York, the first legislative hearings on LGBT issues were held, as was the first parade to commemorate the events at Stonewall the year before. The resistance at Stonewall in 1969 is considered the beginning of the modern LGBT rights movement. Over the years, the commemoration has grown and spread as more people, LGBT and straight, determine that being LGBT should not equal being vulnerable to discrimination or death. Each June there are now Gay Pride Month celebrations across the country and around the world. While in office, President Clinton issued proclamations declaring June Gay Pride Month, as do many state governors. President Bush broke with this tradition, saying he considers sexual orientation a personal matter. Every year he was in office, President Obama celebrated Gay Pride Month at the White House and issued proclamations.48 In addition, he endorsed legislation to end workplace discrimination against LGBT employees, strengthened federal protection for LGBT employees, extended hospital visitation rights to LGBT partners, and endorsed same-sex marriage. He also made Stonewall a national monument.

LO3

The Clinton administration’s first U.S. Department of Transportation secretary, Federico Peña, held a lunch-hour Gay Pride Day ceremony for department employees, stating, “We need to draw on the talents of everyone. It’s not about special privileges. It’s about equal treatment.” Among many other companies, as you can see from Exhibit 10.6, Delta Airlines also engages in such activities. For instance, in addition to those outlined in the exhibit, at its hub city hometown Atlanta’s Gay Pride events, the company has not one, but several booths providing information about Delta’s LGBT support and attitudes regarding it. Each year there are many conferences held to provide guidance for human resource professionals and others needing guidance in the area.

Each October 11 is National Coming Out Day, the purpose of which is to bring attention to the forced invisibility of gays and lesbians and the importance of their being open about who they are in an effort to help dispel the myths and stereotypes society holds that have resulted from their historical silence, invisibility, and abuse. There is also a national day of remembrance in November for transgender individuals and their supporters to bring attention to those who have been killed because of violence against transgender individuals.

The question often arises as to why a gay person has to let people know of his or her sexual orientation. We often hear, “I don’t go around telling people I’m straight, so why do they have to say they are gay?” The reason is that there is an overriding presumption that virtually everyone is heterosexual, and if the LGBT page 488person does not say otherwise, he or she ends up feeding into it and living a lie. It is the default. But being honest and letting people know takes away the presumption that forces the LGBT employee into complicity.

The issue of LGBT employees in the workplace can surface in some surprising ways, making it all the more compelling for an employer to be aware of the possibilities and take them into consideration when making policy in this area. Apple (the computer company) was thinking of moving its operations to Williamson County, Texas. The city council refused to vote Apple concessions as an incentive to move there after it discovered that Apple had domestic partnership benefits for its employees. Apple refused to take away these benefits, and the city council finally voted to give Apple the concessions. The Walt Disney Company took a real beating from conservatives when it extended benefits to domestic partners of its employees. The company chose to continue the benefits. Anheuser-Busch took flak for its ads featuring two men holding hands, but the ads continued. In 2005, two weeks after dropping the protection for gays and lesbians from its legislative agenda due to threats of boycotts from religious groups, Microsoft’s CEO, Steve Ballmer, said, “After looking at the question from all sides, I’ve concluded that diversity in the workplace is such an important issue for our business that it should be in our legislative agenda.” Microsoft also issued an “It’s Getting Better” video.49 When Chik-fil-A’s CEO made public statements opposing gay marriage, a hullabaloo arose when the LGBT community decided to boycott the restaurants and Chik-fil-A supporters held counterdemonstrations. Chik-fil-A eventually announced it was leaving the issue of same-sex marriage to the politicians and courts.

Marriage equality is now the law, yet the struggle still continues regarding other issues. Most recently, for instance, we saw the national battle over the issue of bathroom usage for transgender individuals. Part of the reality of this volatile area is that the new presidential administration has been perceived as possibly rolling back protections gained in this area by, among other things, President Trump’s “religious liberty” executive order50 and his executive order revoking President Obama’s strengthening of protections with government contractors for LGBT workers.51 For employers this means even more vigilance in making sure to keep up with developments.

Based on the potential for increased productivity and the possibility of litigation or other business issues, some employers conclude that the safer practice is to base workplace decisions solely on an employee’s ability to effectively perform the job, rather than on his or her sexual orientation or gender identity. If the employee’s conduct interferes with the workplace, it may well be the basis for a disciplinary action under the employer’s relevant workplace policies, but this is not the same as the employee’s sexual orientation or gender identity. The focus should not be on the employee’s status as LGBT but, rather, on the employee’s workplace performance.

Again, the above notwithstanding, Congress has not chosen to include sexual orientation and gender identity as protected categories under Title VII of the Civil Rights Act of 1964, but it has been judicially and administratively determined by the U.S. Supreme Court, the EEOC, and other interpretations that it is a type of gender discrimination. It is significant that Congress has not overturned the page 489EEOC’s 2012 interpretation that transgender discrimination is a type of gender discrimination and its 2015 determination that being gay, lesbian, or bisexual is also a basis for gender discrimination claims. However, that can change at any time by Congress passing a law nullifying the agency’s position.

The Employment Nondiscrimination Act (ENDA) would basically extend Title VII’s reach to include discrimination on the basis of sexual orientation and gender identity. Hundreds of corporations have formally endorsed ENDA, including NYNEX Corp., Polaroid, Bethlehem Steel Corp., Xerox, Yahoo, Kaiser Permanente, Harley-Davidson, Merrill Lynch, Quaker Oats, and Microsoft, to name a few.52

ENDA is not the only antidiscrimination legislation that has been proposed. The latest iteration, the Equality Act of 2017 (H.R. 2282; S. 1006), was re-introduced on May 2, 2017, (originally introduced in 2015) with 241 original bipartisan cosponsors (the most ever received by a piece of LGBT supportive legislation) would amend Title VII as well as several other statutes. As noted above, this is not the first time the law was introduced, but it has yet to pass. It is much broader than Title VII and ENDA, in that in addition to prohibiting workplace discrimination, it would prohibit discrimination on the basis of sexual orientation and gender identity in housing, public education, receipt of federal funds, jury service, and public accommodations and services including transportation, banking, legal services, and retail stores. In other words, all of the ways in which cases and experience demonstrated that the LGBT community experiences discrimination. In March 2016, the Human Rights Campaign announced the launch of its Business Coalition for the Equality Act, with the endorsement of more than 80 major employers whose revenues total $1.9 trillion, and whose workforce employs over 4.2 million people.53

A U.S. Government Accounting Office report on states with antidiscrimination laws for LGBT protection found that the laws had not generated a significant amount of litigation. In a show of how important actually including LGBT protection in Title VII is, rather than the existing patchwork of court interpretations, executive orders, state and local laws and ordinances, it is widely thought that at least some of these protections may well be adversely impacted under President Obama’s successor, Donald Trump. For instance, Executive Order 13672 signed by President Obama in 2014, prohibits contractors doing business with the federal government from discriminating against its LGBT employees. Essentially, it created the equivalent of Title VII protection for LGBT employees of the federal government and for those employed by businesses who contract to provide goods and/or services to the federal government. The same year, Obama issued Executive Order 13673, Fair Pay and Safe Workplaces, to strengthen 13672 by requiring federal contractors to show they have complied with various laws and executive orders regarding nondiscrimination. This latter executive order, enjoined by a federal court in Texas in October 2016, was reversed by Trump. On May 4, 2017, Trump signed into law an executive order (dubbed the “religious liberty” order) directing the IRS to use “maximum enforcement discretion” against the law preventing religious organizations from endorsing or opposing political candidates (known as the “Johnson Amendment”) and provide regulatory relief for religious organizations with objections to providing health care services based on their page 490religious beliefs. This is widely believed by the LGBT community to be a roll back of protections aimed at the LGBT community.54

LO2

As you can see from the number of state and local jurisdictions with protective legislation of some kind, having no federal legislation protecting LGBT employees from workplace discrimination does not mean that employers are totally free to discriminate against them. As we said earlier, to date, legislation has been passed protecting LGBT employees from workplace discrimination in over 500 municipalities and 21 states and the District of Columbia, and other states have such laws pending. Between state laws and local ordinances or executive orders, every single state in the union now has some form of job discrimination protection for LGBT employees. In addition, more than 73 local jurisdictions, and 20 states provide workplace protection for transgender employees. An increase in litigation has been one of the main reasons that Congress has opposed ENDA, despite the fact that the GAO study previously mentioned, of states with job discrimination laws for LGBT employees, found little, if any, increase in the number of LGBT job discrimination lawsuits.

In addition to rights that may be provided by state and local legislation, LGBT public/government employees adversely affected by an employment decision based on sexual orientation may, under appropriate circumstances, use their state constitution or the First, Fifth, or Fourteenth Amendments of the U.S. Constitution as a basis for suit, as well as the constitutional right to privacy. This applies to any government employees, whether federal, state, or local. These lawsuits have traditionally been decided in the employer’s favor, but recent decisions have impacted this trend and increasingly recognize LGBT employee protections based primarily upon equal protection of the law principles. For instance, a 2014 Ninth Circuit Court of Appeals case out of California ruled that it violated the Equal Protection Clause of the U.S. Constitution for an attorney to use peremptory strikes during jury selection (peremptory strikes permit attorneys to strike jurors for any reason except illegal ones) to strike LGBT prospective jurors.55 The court determined that analyzing LGBT issues required heightened judicial scrutiny, which means a tougher road for those attempting to make distinctions based on sexual orientation. This means employers should take note.

If the facts warrant, LGBT employees also may bring civil tort actions such as intentional infliction of emotional distress, intentional interference with contractual relations, invasion of privacy, or defamation. The outcome depends on the particular circumstances, but employers should be mindful of the possibility of civil suits with unlimited damages.

Seeing how the court handles this issue in the case Weaver v. Nebo School District, included at the end of the chapter, is instructive in trying to shape policies consistent with its pronouncements. When a high school teacher said she was a lesbian, in response to being asked, her coaching job was taken away and a notation was put in her personnel file. The court held that this was an unconstitutional denial of equal protection of the law.

The Weaver decision was mentioned the Romer case,56 in which the state of Colorado passed a constitutional provision that would have prohibited any government subdivision from passing laws protecting gays and lesbians from page 491discrimination. This was one of the first major U.S. Supreme Court cases that challenged states’ rights to pass laws restricting rights of gays and lesbians. As such, it sent an important message to states regarding their ability to exclude certain groups from constitutional protections. To some extent, this paved the way for much of what was to come, as you can see from the Weaver case. Note, too, that as the court mentioned, Title VII did not protect Weaver on the basis of sexual orientation, and the state did not have a law protecting her, but because she was a public school teacher, and thus a government employee, she had a cause of action for an unconstitutional denial of equal protection under the law.

Employers also should be aware of the possibility of several closely related matters that may arise in LGBT cases and cause liability based on the protected category of gender—for instance, gender stereotyping as discussed in the gender chapter. Judging employees based on stereotypical ideas about a given gender (that is, females who are “too aggressive” or “too macho” or males who are “too effeminate”), rather than on legitimate job requirements, may result in liability for gender discrimination, rather than sexual orientation, and should be avoided. Similarly, if an employer knowingly hires one group of LGBT employees but not another, for instance, lesbians but not gay men, this could be the basis for gender discrimination. In such a case, under Title VII, sexual orientation is clearly not an issue for the employer, since the employer knowingly hired lesbians.

So, unlike the rest of the categories we have discussed, sexual orientation is not nearly as settled as the other categories of employment discrimination. However, the vast patchwork quilt of constitutional guarantees, state and local laws and ordinances, and employer policies, as well as the public relations aspects of the issue, make it one in which giving careful thought to policy and actions involving LGBT employees is critical. We are in the rare position of seeing an entirely new area of law unfold. As exciting as this is from a legal standpoint, it can have traps for the unwary employer. Sticking with only relevant qualifications and watching trends in case law and legislation at all levels will greatly aid in making policy decisions much less likely to result in liability.

Sexual Orientation as a Basis for Adverse Employment Decisions

Despite the dramatic changes that have taken place for LGBT employees within a short period of time, or even perhaps because of it, overall, LGBT employees still have significant issues with being accepted in the workplace. A recent HRC report, The Cost of the Closet and the Rewards of Inclusion: Why the Workplace Environment for LGBT People Matters to Employers, found that while 91 percent of Fortune 500 companies have sexual orientation antidiscrimination policies, 61 percent of Fortune 500 companies have gender identity policies, and 98 percent of global 2017 Corporate Equality Index businesses have fully inclusive, globally applicable non-discrimination policies or codes of conduct, more than half, 53 percent, of LGBT workers nationwide hide who they are at work. HRC said that page 492this “comes at a cost of inclusion and employee engagement and retention and reveals broader challenges of full inclusion in the workplace not just with respect to sexual orientation and gender identity, but along other lines of diversity such as gender, race, and ability.”57 Given the many pieces of information we have provided for you about the background and context of LGBT issues, this should come as no surprise.

As you will see from the cases in the chapter, not all sexual orientation issues and gender identity cases arise in the same contexts. The employee may be the basis of employer concern because the employee, among other things,

· Is LGBT (i.e., status or orientation).

· Has primary relationships with those of the same gender (activity rather than status).

· Exhibits inappropriate workplace behavior such as detailed discussions of intimate sexual behavior or improperly propositioning others in the workplace (this is certainly not presumed of LGBT employees, and as you saw in Chapter 8 on sexual harassment, this is most assuredly not solely an LGBT phenomenon).

· Wears clothing, jewelry, or makeup in violation of workplace grooming codes.

· Is in the presurgery adjustment stages of gender reassignment surgery.

· Undergoes gender reassignment surgery.

Note that some of the activity presents a problem no matter who the employee is. An employer should not tolerate from any employee inappropriate workplace behavior such as improperly propositioning other employees. A distinction also should be made between status or orientation as LGBT, on the one hand, and, on the other, activity that may be inappropriate. Basing decisions and policies on an employee’s actions is more defensible than basing them on his or her LGBT status. But even then the action should not be singled out solely based on the employee’s orientation. Each of the above contexts of LGBT issues presents its own unique issues.

On the other hand, among other things, LGBT employees have sued employers doing things such as failure to hire, terminating employment because an employee is LGB or T, creating for LGBT employees a hostile environment through calling them derogatory names, not addressing negative comments by co-workers that are reported to management or management endorses or joins in the comments, lecturing to them about their “lifestyle,” making derogatory jokes, teasing, or gestures; changing their work schedules and/or responsibilities to be unnecessarily inconvenient or having fewer duties and responsibilities; giving them unnecessarily poor evaluations; and asking disrespectful and/or invasive and unnecessary personal questions.

As mentioned, in 2015, the EEOC announced that it was reversing years of precedent and had now determined that Title VII’s gender category included discrimination on the basis of sexual orientation. Note that this was not Congress amending the law, but rather, it was being interpreted differently by the agency that had been created in Title VII of the Civil Rights Act of 1964 to enforce the page 493law. Through a series of several court decisions over the years, stemming primarily from the U.S. Supreme Court’s decision in Price Waterhouse v. Hopkins outlawing gender stereotyping, which you saw in the gender chapter, the agency finally concluded that sexual orientation was based on gender stereotyping and is illegal. It had done a similar analysis three years before regarding gender identity, concluding in Macy v. Holder 58 (included for you at the end of the chapter) that gender identity discrimination is a type of gender discrimination and thus, illegal. Thus, the Civil Rights Act was passed in 1964, became effective in 1965, and it was not until 2012 that the EEOC recognized gender identity as the basis for a claim of illegal discrimination, and 2015 that it recognized the same for sexual orientation. As of those dates, 47 and 50 years after the effective date of the law, the EEOC began taking claims for gender identity discrimination and sexual orientation discrimination, respectively. It filed it’s first two sexual orientation cases on March 1, 2016.59

Macy is an excellent way to see how the EEOC finally came to the position it did based on the precedent established by the Supreme Court’s Price Waterhouse (outlawing gender stereotyping) and Oncale (permitting claims for same-gender sexual harassment) decisions and federal district court decisions. The Seventh Circuit’s decision in Hively v. Ivy Tech is also offered at the end of the chapter as an excellent read on how this federal circuit court of appeals also came to determine that sexual orientation is a type of gender discrimination prohibited by Title VII. It can be worrisome in a system of checks and balances where each of the three separate branches of government has a distinct role to play, to have courts step outside of their role as interpreters of law and take over the legislature’s role as creators of law. Congress had many times declined to include the LGBT category in Title VII. But, the EEOC did so, and courts did too. It is imperative to read the cases to see how they came to their decisions and how doing so is not only within their authority, but makes perfect sense given the precedent with which they were faced.

Of course, from what you have already read, you realize that this is not quite the entire story, since Congress has power over the EEOC and can change the law whenever it decides to do so whether it is consistent with the EEOC’s position or not. The Supreme Court can also page 494render a decision that essentially overturns both the EEOC’s position as well as that of the Seventh Circuit. The month before the Seventh Circuit’s en banc decision in Hively holding that sexual orientation is a type of gender discrimination under Title VII, a three-judge panel of the Eleventh Circuit issued a decision holding that sexual orientation is not covered by Title VII, although gender non-conformity is. In Evans v. Georgia Regional Hospital, 60 a female security guard, who, by her own admission, was more masculine in appearance than feminine, based on shoes, haircut, and so forth, alleged discrimination based on sexual orientation and gender non-conformity. The Eleventh Circuit held that the claim for gender non-conformity was cognizable under Title VII, but not the one for sexual orientation, based on their precedent.

When federal circuit courts of appeal come to different decisions about the same law, it is called a split in the circuits. These cases are often the ones over which the U.S. Supreme Court will take jurisdiction and review when the parties file a writ of certiorari to ask the high court to review its decision. The Court is more likely to hear these types of cases than some other types, so that it can render a decision that puts the various positions to rest and everyone is governed by the same federal interpretation of law. It is only speculation, but we do not think it will be long before this occurs with the issue of whether Title VII’s prohibition on gender discrimination includes discrimination based on sexual orientation and gender identity. With Congress’s extended gridlock and its decades long reluctance to move in this area, it is more likely that it will be the Supreme Court rather than Congress that settles the matter. Of course, Congress can always come back and pass a law that essentially overturns the Supreme Court’s decision if it wishes. It should be noted that the fact that Congress has not moved to undo what the EEOC has done in interpreting the law as it has can be taken as a sign that it is not displeased with the EEOC’s position.

At any rate, as you can see, since this coverage of sexual orientation and gender identity only began by the EEOC in 2012 and 2015, it was not always thus.

image

DeSantis v. Pacific Telephone and Telegraph Co., Inc., 61 is one of the earliest cases about sexual orientation and Title VII. In that case, several telephone company employees brought Title VII claims when the employer terminated them because they were gay or lesbian or perceived to be so. The court’s reasoning for not allowing the Title VII claims is based on the employees’ status of being gay or lesbian rather than something the employees did. It is this basic approach that underlies why the employee would not be protected in Opening Scenario 1. In the Nichols case provided at chapter’s end, this same court reversed itself to some extent, but DeSantis is an important historical case setting forth that Title VII did not provide protection for gays and lesbians at a time when few such cases had been brought. On the other hand, look at Exhibit 10.7, “New Push to Recruit Gay Students,” to see how much the workplace changed.

Exhibit 10.7  New Push to Recruit Gay Students

In a February 2000 Wall Street Journal article, Rachel Emma Silverman reported that Wall Street financial firms were, for the first time, targeting their recruitment toward gay and lesbian business students. Firms such as Goldman Sachs Group, Inc., J. P. Morgan & Co., and American Express Co. have gone to great lengths to woo gay students. According to the employers, the tightening labor market as well as the increasingly vocal employees of the firms caused them to use this as a tool to be or remain competitive in their recruiting efforts. The recruitment efforts include wining and dining the students at posh restaurants, co-hosting dinners for gay students, having gay and lesbian support groups in the workplace, having gay recruiting events with well-known speakers, and having discussion groups about being gay in the workplace.

Other firms, in an effort to thwart the criticism from students that they ought to be chosen for their qualifications, not their sexual orientation, declined to target gays and lesbians in recruiting. Students were clear, however, that it was important for them to feel comfortable in their workplace, including feeling comfortable about their sexual orientation. Since this time, there also have been gay and lesbian job fairs and college fairs, among other things, organized to ensure that gays and lesbians would be able to seek opportunities in settings in which they would be comfortable, given the usual hostile environment they can encounter.

page 495Realizing the effect of DeSantis, which has been widely used as precedent in other jurisdictions to deny LGBT employees workplace discrimination protection for being LGBT, claimants have tried to get around the Title VII limitation by alleging some other recognized basis for discrimination under Title VII. For instance, in Williamson v. A.G. Edwards & Sons, Inc., 62 a black male employee was terminated for wearing makeup in the workplace. He sued the employer for race discrimination, rather than sexual orientation. The employee alleged the employer treated him differently than white males who were allowed to wear such things. The court found no evidence that he had been treated differently based on race. The evidence the employee provided was not comparable; therefore, the comparison he made was inappropriate.

As this case indicates, sometimes an employer terminates an employee who fits into more than one category (or perceived category) of Title VII. One category may be protected and the other not, that is, in the case race is protected, but not sexual orientation. Liability may still ensue. For instance, if the employee had been able to prove that the employer terminated him for wearing makeup but the employer did not terminate a white employee doing exactly the same thing, that would be race discrimination, even though being LGBT is not a protected group. Since the basis for the discrimination is race rather than being LGBT, it would be actionable. However, as Williamson demonstrates, the claim must be more than a mere allegation; it must be proved. To be fully protected in the decision to terminate, an employer must be certain there are no facts that will support the other categories the employee may allege as a basis for workplace discrimination.

Regarding the makeup issue in Williamson, as we discussed in the gender chapter, employers are able to impose workplace dress codes as long as they do not violate Title VII. There is nothing in Title VII to prevent an employer from prohibiting men from wearing makeup in the workplace. Note that this is generally more of a transgender issue than a gay issue. The Washington State Supreme Court ruled that Boeing Company had sufficient basis for terminating a male engineer who was undergoing gender reassignment surgery. Boeing attempted to accommodate the employee by permitting him to wear “unisex” clothing; but the employee was terminated when he added pink pearls to such an outfit and insisted on using the women’s bathroom. (Boeing is Case 5, discussed later.)

For years, male employees also tried to argue that their effeminacy should not be a basis on which employers can refuse to hire them or can terminate them from their jobs. Until recently, this argument rarely succeeded and courts routinely sided with the employer, usually using DeSantis for precedent. The court in DeSantis had stated:

Employee Strailey contends he was terminated by the Happy Times Nursery School because the school felt that it was inappropriate for a male teacher to wear an earring to school. He claims that the school’s reliance on a stereotype—that a male should have a virile, rather than an effeminate, appearance—violates Title VII. This does not fall within Title VII. We hold that discrimination because of effeminacy, like discrimination because of [sexual orientation], does not fall within the purview of Title VII.

LO4

page 496However, in the Nichols case discussed shortly, the DeSantis court reversed itself as it related to the issue of stereotyping and determined that under certain circumstances, Title VII permits employees claiming discrimination based on failing to fit a certain gender-based stereotype (usually effeminate men) to bring a claim based on gender stereotyping. In doing so, the court interpreted the U.S. Supreme Court’s Price Waterhouse v. Hopkins case, discussed in the gender chapter, as being inconsistent with its DeSantis holding. The court said:

Price Waterhouse sets a rule that bars discrimination on the basis of sex stereotypes. That rule squarely applies to preclude the harassment here. We do not imply that all gender-based distinctions are actionable under Title VII. For example, our decision does not imply that there is any violation of Title VII occasioned by reasonable regulations that require male and female employees to conform to different dress and grooming standards.

The only potential difficulty arises out of a now faint shadow cast by our decision in DeSantis holding that discrimination based on a stereotype that a man “should have a virile rather than an effeminate appearance” does not fall within Title VII’s purview. This holding, however, predates and conflicts with the Supreme Court’s decision in Price Waterhouse. And, in this direct conflict, DeSantis must lose. To the extent it conflicts with Price Waterhouse, as we hold it does, DeSantis is no longer good law.

So, by now, after seeing the progression of the sexual orientation cases from the Supreme Court’s Price Waterhouse case up to the EEOC’s 2012 and 2015 decisions, to the Seventh Circuit’s Hively case as well as the Eleventh Circuit’s Georgia Regional Hospital case, you should have a good idea of the basis for claims of sexual orientation under Title VII. However, you should also now realize as well the impact of Title VII not actually having sexual orientation language, and the interplay with state laws, court decisions, executive orders. and employee policies. Clear as mud, right? :-) That is why there is such a a call for uniformity.

A Note about Same-Gender Sexual Harassment

LO5

We are addressing this issue here instead of in the sexual harassment chapter because of the special development of the area and the way the law looks at this in light of Title VII itself not covering gays and lesbians. We also do it here because the background for the analyzing of sexual orientation and gender identity issues was not provided until this chapter.

Since Title VII does not include a prohibition against discrimination on the basis of sexual orientation, an important legal question had been whether an employee sexually harassed by someone of the same gender could bring an action under Title VII. Some courts said no because they considered any sexual harassment between employees of the same gender to be based on sexual orientation (regardless of the nature of the harassment), and since Title VII excluded sexual orientation coverage, a harassee had no cause of action.

Other courts looked at the nature of the harassment itself and allowed a cause of action if it was not based on sexual orientation (rather than presuming that because it was between employees of the same gender it must be). There were many other page 497variations on the theme. In the Oncalev. Sundowner Offshore Services, Inc., case63 the U.S. Supreme Court finally made sense of it all by saying there could be a cause of action for sexual harassment even if both parties are of the same gender, as long as it is clear that the basis for the harassment is not because the harassee is LGBT.

Oncale was a huge case. Not only had courts across the country been absolutely splintered in their approaches to the same facts (sound familiar?), but legal scholars and employers, as well as the public, debated the issue at length. The U.S. Supreme Court finally came down on the side of the intent of Title VII in striking at the full spectrum of gender-based employment discrimination. It made sense that if the issue involved was workplace harassment and discrimination, then the gender or sexual orientation of either party should not matter. That inquiry is not made in other harassment cases, and it made little sense to make it in this one. As the Court determined, the important inquiry is whether “the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.” If so, then Title VII is violated. Clearly that happened in Oncale. This analysis is the basis for Opening Scenario 3.

Under the Oncale decision, the Court preserved Title VII’s exclusion of discrimination on the basis of sexual orientation by holding that the sexual harassment of an employee by someone of the same gender is prohibited unless it can be shown that it was actually based on sexual orientation. That is, if a female employee can show that a female harassed her by calling her negative names, undermining her work productivity, spreading lies about her, or negatively commenting on her personality, actions, friends, speech, or clothing, as it relates to gender, and so on, then she can bring a claim under Title VII. If, however, the harassee is a lesbian and the harassment is in the form of something such as constantly calling her a lesbian, “dyke,” or other derogatory terms related to her orientation; directing teasing, joking, and comments on homosexuality toward her; or persistently asking for dates or making sexual comments, based strictly on her status as a lesbian, then the harassee would not have a cause of action under Title VII, based on Oncale.

The first situation is plain old sexual harassment even though the parties are both the same gender, and it is covered by Title VII. The second is harassment based on sexual orientation and it is not covered. What the Supreme Court did is not presume that every harassment between employees of the same gender is based on sexual orientation. See if you can make the distinction in the Nichols v. Azteca Restaurant Enterprises, Inc., case, supplied for your review at the end of this chapter, in which the court permitted a cause of action for gender harassment by an employee who was constantly harassed by his co-workers for being effeminate.

Gender Identity Discrimination

LO6

Closely related to sexual orientation, but actually quite separate, is the matter of gender identity. As you saw earlier in the chapter, some state and local laws protect sexual orientation but do not also protect gender identity. Gender identity involves how an individual identifies with gender. It encompasses several different manifestations, page 498including sexual reassignment surgery and its stages, or dressing or acting in ways consistent with a gender other than the employee’s assigned gender or being transgender. This is quite different from the issue of sexual orientation. Gays and lesbians do not feel that their body and mind are at odds. They simply prefer their significant relationships to be with people of their same gender. According to the Human Rights Campaign, the term transgender encompasses cross-dressers, intersexed people (formerly called hermaphrodites, or those born with both sex organs), transsexuals, and people who live substantial portions of their lives as other than their birth gender. In 2016, The New York Times reported that the number of transgender Americans had doubled to 1.4 million from earlier estimates, based on new state and federal data.64 As early as 2002, it was estimated that as many as 200,000 people had transitioned from their birth gender to the opposite gender during the past several years in the United States and perhaps 10,000 more do so each year.65 A 2016 HRC survey showed that the number of Americans who know someone who is transgender increased from 22 percent in 2015 to 35 percent in 2016, as well as an increase in those who felt favorable toward transgender individuals. Sixty-six percent of those who felt favorable toward transgender individuals supported equality for them.66 

While the term transgender has traditionally been used for those who have undergone gender reassignment surgery, a change in the use of the term has come with a growing awareness of the issues of transgender individuals and a greater sense of themselves than historically. It is now often used more loosely to include those who may not yet have had surgery but are living as the opposite gender. There are those within the transgender community who may have had surgery to change their gender, or those who cannot afford such surgery or for other reasons may not wish to have surgery, but they still feel like the gender opposite their outward appearance and they wish to present that to the world. They may have had some surgery and not other surgery. Whether they have or have not is totally irrelevant to their ability to do their job, and it is inappropriate to ask. Transgender employees simply want to be treated as the gender they feel themselves to be and represent themselves as.

Our students usually have a pretty hard time wrapping their heads around this issue. Unlike the other types of discrimination we have discussed, most of them are not aware of knowing anyone in this category, so they have no frame of reference for it. To them, it seems bizarre and unsettling. “Why in the world would somebody want to change their gender?” they ask. The biggest surprise for them is realizing that transgender individuals do not just decide on a whim to change their gender. See Exhibit 10.8 “Transgender: Why Did I Want to Transition?” The condition of feeling like your mind is one gender and your body is the opposite is a medical condition recognized by the American Medical Association as gender dysphoria, also called gender identity disorder. The term transsexual is traditionally used to describe a person who has undergone gender reassignment surgery. Though it may seem drastic to those without the condition, for transsexuals, changing their body is easy compared to living with a body that does not represent who they feel themselves to be. For them, changing their body is simply making the outside conform to the inside.

Most of us do not realize just how mental our gender is. We just take for granted that we are the way we are, period. We’re male and that’s it. We’re female and that’s it. The truth is, a lot of what we think of as our gender is mental, due to both acculturation as well as physiology.

page 499 

Exhibit 10.8  TRANSGENDER: WHY DID I WANT TO TRANSITION?

This is an interesting question. The truth is, I didn’t particularly have a choice. I appeared to be a man, but had this inner gender identity turmoil in that I never quite felt like everyone said a man should feel. I knew about transsexuals and cross-dressers, and presumed I was the latter for many years. Finally, I looked in the mirror and said to myself, “Oh. That explains a lot. You are a woman, and you are going to transition. Now, how can I explain this to my (soon to be) ex-wife, children, parents, brothers, other relatives, friends and coworkers.” I faced what I saw as the obvious, and the obvious path. There was not a choice.

Though some believe that one can choose to be untrue to themselves; I could not. Some transgender individuals feel this strong need to transition, but choose not to because it would disrupt their marriages, relationships, careers, and so on. They tend to have high levels of depression, and the suicide rate for transpeople is about 9 times the national average.

Because of medical insurance not covering such things, I was unable to seek necessary therapy help for another four years. But, I was able to navigate that messy, frustrating process, and begin therapy with a therapist who was an expert on transgender issues and transsexuality. Being diagnosed in 40 minutes is unusual, and even though I never presented myself as female publicly, I continued transitioning in private by doing the things that a woman would do such as wearing women’s clothes, make up, hairstyles, and even doing things like female hand gestures and smiles. Transitioning was difficult. There are excellent autobiographies and therapist-written books about the process for the individual, the family, the workplace, and for therapists, but the feeling of being alone trumps those.

I discovered that one of my old friends from undergraduate school was transsexual and living stealth (unknown). When I told her I was going to transition, she emailed back with “Uh huh. Don’t do it. But you will, because you really don’t have a choice. It’s who you are.”

I reached out to others, to activists in a campus LGBTQ faculty and staff organization, to the director of our LGBT Student Center, and my therapist, all of whom were remarkably supportive and knowledgeable while some aspects of my personal and professional life changed dramatically. I also connected with two nearby support groups.

Coming out in the workplace involved communicating with and eventually meeting several activists, and our campus director of diversity, who thankfully ran interference for me. She secured an agreement with our legal department to extend protection in the workplace to me, even though gender identity and expression are not legally protected classes. The HR director lent support in that they were ready to process forms for name and gender changes when they were necessary, and the EEOC director also lent strong support. (Interestingly enough, for students, they will update the name and gender marker in the records in advance of the legal requirements.) She also began the process of negotiating a solution to “the bathroom issue.” The college provided a unisex bathroom designated for me until I fully transitioned. When I was in other buildings, I did not have that. The director of our LGBT Student Center and a campus activist did presentations at meetings with faculty, staff and doctoral students. I made my announcement that “I am transsexual and am actively transitioning. Now my friends will explain.” And they did.

Coming out and actively transitioning is a difficult process. Recognizing that you will put every relationship you currently have and ever will have at risk is frightening. Having the support and caring of the administration made this process relatively smooth. When there is support at the top of an organization, the organization definitely follows. Connecting with college professor friends who transitioned before me provided valuable guidance and support. There were a few minor issues with students that I actively settled. After my first semester living full time, our director of diversity emailed me asking if everything was alright because she had heard nothing from anyone.

page 500Sometimes I will meet on campus or elsewhere a colleague or acquaintance whom I have not seen in a while. When reintroduced, I may say, “Hi. We met when I was a man.” In addition, I find it comedic when I meet a faculty member from my campus or another university who knows of my research work or books. They will often ask if I know myself or am married to myself, to which I often reply, “Oh yes . . . I used to be him.”

Janine Elyse Aronson, Ph.D., Professor of Management Information Systems, The University of Georgia, Athens, GA 2/19/2014. Used with permission.

If I said to males reading the text, “Paint your fingernails red and go about your day and everyone can see them,” most of you would probably howl in protest, “No way!” Ever think about why? Painting your nails red doesn’t change your fingers. It doesn’t change who you are. It’s just nail polish. Yet you don’t want to do it because it just doesn’t feel like you. For most of you, it would feel like it would be feminine and you feel masculine. Even if you just painted your nails red and sat in your room with no one around, you would feel uncomfortable. So much so, that you would never do it. For individuals with gender dysphoria, their body looks like one gender, but their mind feels like the opposite gender and always has. For the most part, until they transition and live as the gender they feel they are, they have an overriding sense that they are in the wrong body. (The reason I asked males instead of females is because females have more flexibility in their dress. For instance, it is perfectly acceptable for females to wear nail polish or not wear nail polish in a business setting. For men, it is generally not acceptable to wear nail polish.)

Since most people are not familiar with this issue, you can imagine that it presents rather interesting, confusing, and, at times, complicated workplace challenges that must be addressed. As a matter of information, once someone has changed his or her gender identity and complies with state laws to do so, he or she is now legally considered to be the gender to which he or she has changed. None of that “he/she” stuff as if you don’t know what to consider them once you realize they are transgender, as has happened in several cases. They are the gender they have transitioned to, again, whether you understand it or not. Depending on state law, they generally can have their identity documents reissued to be consistent with their new gender and can even have their birth certificate reissued in some jurisdictions. After surgery, they are, for all intents and purposes, the gender they transitioned to and wish to be treated that way.

That is for those who undergo actual surgery, but not all transgender individuals do. All transexuals are transgender, but not all transgender individuals are transsexuals. If they have not undergone surgery, this does not mean they are any less transgender. The safest thing, and the most appropriate for workplace purposes, is simply to treat the employee consistent with the way the employee page 501presents his or her identity. Also, unless the employee is asking for time off for surgery or is him- or herself addressing the issue, it is not okay to bring it up and inquire as to whether they have had surgery. Can you imagine someone asking you such a personal question? When you think about it logically, why in the world would anyone ask such a personal question about a co-worker’s body parts? What is the purpose of knowing? Why is it even in a co-worker’s mind? The reason is usually pure curiosity and that is not a sufficient reason to be impolite and invasive in the workplace.

It may seem a bit strange to discuss this in a legal textbook. However, we must. We tell you this because we have taught thousands of students and had thousands of attendees at consulting and training and workshop sessions, and they routinely ask these questions in order to better grasp what seems so alien a concept to them. We care about giving you the right tools to make decisions in the workplace in order to avoid unnecessary liability. Since so many of our students and seminar attendees ask the questions, we thought you might have the same ones. We also believe that providing a thumbnail sketch here gives you some means of analyzing the cases in this section. Because many people have little or no understanding of these issues when they are faced with them as managers or supervisors, they have little idea how to make legally defensible decisions. It is important to recognize that because you do not understand or “accept” gender identity issues does not mean (1) that they do not exist, or (2) that you can afford to ignore the reality of handling these workplace issues.

This lack of understanding may account, at least in part, for the fact that a 2009 national survey of more than 6,000 transgender individuals found that 47 percent had experienced adverse job actions because of gender identity and 97 percent had experienced some form of anti-transgender harassment or discrimination on the job.67 A 2011 joint report by the National Center for Transgender Equality and the National Gay and Lesbian Task Force found that 90 percent of transgender Americans have to deal with workplace discrimination or harassment as a result of their gender identity.68

In the majority of federal jurisdictions, those who are terminated or not hired solely on the basis of sexual orientation or gender identity have no claim for relief under the words of Title VII itself, although, as we have said, the EEOC has interpreted gender to include discrimination on the basis of gender identity. Gender identity was the main reason that later iterations of ENDA have missed passage by as little as one vote. When gender identity was added to the sexual orientation antidiscrimination bill, supporters realized that they did not have enough votes for passage if discrimination on the basis of gender identity was included. The LGBT community chose to continue to push for the inclusive language and it has remained that way ever since. The Senate passed ENDA for the first time in 2013, but the House failed to do so even though polls at the time showed that 66 percent of Americans supported such a law, and 56 percent supported the inclusion of transgender individuals in such a law.69  President Obama had urged the House to pass ENDA and said he would sign it when it reached his desk,70 but it declined to do so. By 2015, polls showed that American support for page 502the law had grown to 70 percent.71 Ironically, it ended up being gender identity rather than sexual orientation that the EEOC first moved to include in its interpretation of Title VII. It was not until three years later that sexual orientation was included.

Think the issues faced by transsexuals is isolated and far-fetched? In the Boeing case mentioned earlier, the Boeing Corporation was faced with requests for accommodating transsexual employees so frequently (at least nine times) that it finally developed a carefully crafted policy. We include the case for you at the end of the chapter so you can see what that well thought out policy looks like—especially in the earlier days before this issue was so prevalent.

Due in part to the activity surrounding issues of sexual orientation, transgender discrimination became really active and is now one of the fastest-growing social issues. As a result, it is presenting itself more and more frequently as a workplace issue. As we saw earlier, several state and local laws now include transgender employees within their antidiscrimination policies. According to the Human Rights Campaign, the number of Fortune 500 companies that include gender identity protection in their workplace antidiscrimination policies has quadrupled just since 2003. Seventy-seven percent of companies overall, and 86 percent of CEI-rated companies had gender identity policies protecting transgender employees. In 2002, only 5 percent of companies had such policies.72 Seventy-three percent of HRC’s 2017-rated businesses offered transinclusive medical benefits, including surgical procedures.73 Six hundred forty-seven major employers offer transinclusive health care coverage in 2017, yet only 49 did so as short a time ago as 2009.74

The argument was made by trangenders for years, particularly those who had gender reassignment surgery, that they should be afforded the protection of Title VII because they had changed their gender status from male to female or vice versa and now are being discriminated against in employment because they have changed genders. Courts had not upheld this position. As stated in Ulane v. Eastern Airlines, Inc., 75 the basis for Opening Scenario 2, it is not the status of the employee as a member of the gender to which he or she has been reassigned that created the issue. That is, a male who is terminated on becoming a female is not discriminated against because he is a female as contemplated by Title VII. Rather, she is discriminated against because she changed from male to female. These are considered two very different arguments, with the former being provided Title VII protection, but not the latter. However, once the EEOC began accepting gender identity claims for processing, this mattered little because they were protected by law based on their gender identity. Again, at least one federal appellate court has supported this position, but because it is not federal law as a part of Title VII, a court could still follow Ulane and not protect the employee who transitioned.

page 503 

Ulane, a 1984 case, was the first significant case to address the matter of transgender discrimination and remained the general approach to transgender discrimination in the workplace under Title VII until the EEOC’s Macy v. Holder 76 decision in 2012, mentioned earlier in the chapter, captured the lower court cases that had begun to view the issue differently. Recall that the transgender employee argued that she was discriminated against because of gender, but the court held this was not the case; it held that the basis for discrimination was changing her gender from male to female, and that was not protected by Title VII. We include it at chapter’s end so that you can see how the law progressed from the time the issue first arose until the EEOC finally interpreted gender identity as a part of gender discrimination under Title VII in 2012, based, in part, on the progression of district court cases coming to that conclusion.

In Macy an imminently qualified job applicant who was led to believe the job was practically his given his qualifications was turned down and a lesser-qualified person hired after the employer learned that the applicant was transitioning from male to female. There had been several federal district court cases holding that discrimination on the basis of gender identity was a violation of the Equal Protection Clause of the U.S. Constitution or of Title VII through gender stereotyping, which had been outlawed by the U.S. Supreme Court in its Price Waterhouse decision discussed earlier and in Chapter 8, Gender Discrimination. In EEOC’s view, because Title VII is a remedial law, it needed to be broadly construed to strike at the entire spectrum of ways in which discrimination is manifested. In the case of gender identity, it said there is discrimination either because the employee transitioned from one gender to the other, or because the employer is uncomfortable with the employee not conforming to gender norms, and either should be actionable under Title VII as gender discrimination. Of course, this broke with the state of the law up until this time.

Employees also have argued that being a transgender is a disability that must be accommodated. The “pink pearls” case, as Jane Doe v. Boeing Company became known, rejected that view in Washington State. It also provides great insight into how an employer can approach these issues to best provide protection against liability for discrimination. Keep in mind, while you review the case at the conclusion of the chapter, that Washington enacted a law protecting transgender individuals from workplace discrimination in 2006, but Boeing had put a policy in place several years before.

Employment Benefits

LO7

The best thing that can be said about this section of the chapter is that for the first time in the history of this textbook, this is such a short section. The legalization of same-sex marriage in 2015 did away with most of the benefit inequality issues that LGBT employees had fought for for years. While we may think of them only as add-ons to our salary, benefits can be vitally important. They can hardly be thought of as a mere add-on since they account for roughly 30 percent of employees’ overall compensation.77 It should therefore come as no surprise that this area was page 504one of the most active regarding sexual orientation and gender identity in the workplace. With benefits accounting for nearly one-third of an employee’s compensation, aside from other considerations, lack of benefits is an equal pay issue. And benefits that other employees took for granted could cause major hurdles for the LGBT community. For instance, before marriage equality was the law, bereavement leave routinely granted to an employee to deal with the death of a loved one was often not provided to an LGBT employee when his or her life partner died, even though the couple may have been together for 30 years or more. Sick leave routinely granted and, in many places, allowed to be gifted to other employees in need was often not given when the employee was LGBT and the family was the employee’s life partner. (See Exhibit 10.9, “Workplace LGBT Employees.”) The up to 12 weeks of unpaid leave to deal with an employee’s adoption or birth of children, medical issues of the employee, the employee’s spouse or children under the Family Medical Leave Act discussed in Chapter 16, was originally not available to gay and lesbian families.

Exhibit 10.9  Workplace LGBT Employees

· Non-discrimination policies. Corporate antidiscrimination policies are a primary concern for LGBT employees who don’t have state or local civil rights ordinances protecting them. A basic statement that employees are given the same opportunity to enter, advance, and succeed in an organization sets the tone for how that organization relates to its LGBT employees.

· Leave and insurance coverage for gender reassignment surgery. A surprising number of companies have now included such coverage in their insurance plans. Without it, most transgender employees cannot afford to take the time off work or to pay for the expensive procedures. Employers have begun to recognize this and have modified their insurance coverage and leave policies accordingly.

Source: Adapted from G. K. Kronenberger, “Out of the Closet,” Workforce Magazine, June 1991, p. 40, as well as HRC.org.

Now that same sex marriage is legal, spousal benefits are available for LGB employees. Even before transgender employees were interpreted by the EEOC as having rights under Title VII, many employers chose to cover their issues related to health insurance and transitioning. Zero percent of employers offered trans-inclusive health care benefits in 2002, the year after the first issuance of the Human Rights Campaign’s Corporate Equality Index. In 2010, 9 percent of the responding employers offered such benefits. In the 2017 Corporate Equality Index that number was 887 employers or 73 percent.

After publishing the first issue of the text in 1994, we are pleased to be able to say that in this edition of the text in 2017, for the very first time since it was first published, many of the workplace benefit issues involving LGBT employees have been, for the most part, resolved.

page 505 

Management Considerations

Since sexual orientation and gender identity are not protected categories under Title VII itself, employers can be perceived as having more flexibility in making workplace policies and decisions on this issue. However, even though the categories are not in Title VII itself, the EEOC, the agency responsible for enforcing the law, has determined that both sexual orientation, as well as gender identity, are both a type of illegal gender discrimination under Title VII. In addition, several federal district courts and the federal Seventh Circuit court of appeals have also recognized sexual orientation as a type of illegal discrimination. For an employer, this means that the safer course is to treat employees in these two categories as being covered by Title VII. Generally speaking, where there is no applicable law protecting LGBT employees, the approach the employer takes will depend in large part on the employer’s own views and preferences. Those employers who prefer the benefits of a diverse workplace—and who wish to maximize the potential the employee has for growth and contribution within the workplace and who wish to avoid legal wrangling—will likely choose to deal with the sexual orientation issue in a less restrictive manner. Other employers may wish to take their chances and discriminate against LGBT employees on the basis of sexual orientation or gender identity because Congress has not yet included these categories in Title VII. As long as employers realize they are making a knowing and calculated decision, they are free to run the risk. The important thing is to recognize that it is, in fact, a risk, since the EEOC’s position is that these are protected categories under the law.

If some action of the LGBT employee presents an issue, it should be dealt with as a legitimate workplace issue rather than one that arose solely because of the employee’s sexual orientation or gender identity. The fact that the employee happens to be LGBT should not be treated as the “why,” any more than it would be if the employee were heterosexual. It is irrelevant to the activity. The focus is on the conduct itself, not on the sexual orientation or gender identity of the employee. It greatly reduces the potential for liability to deal with all employees this way.

Employers who decide to have a policy that treats LGBT employees as full contributors to the workplace should ensure that the message goes out from the very top. It is more likely to be accepted, appreciated, and understood and therefore more likely to accomplish its purpose of lessening potential liability and creating a more productive workplace. Other employees will be more likely to comport themselves consistent with the policy if it comes from the top of the hierarchy. It should be made clear that not only will the employer not discriminate against LGBT employees on the basis of sexual orientation or gender identity, but it will not be tolerated from other employees, particularly in the form of harassment.

The employer who does not prefer this approach may have more latitude under the law (depending on the jurisdiction in which the employer is located) not to take this view than it would, say, about having women in the workplace, or those who are Jewish, or black, or Hispanic. Some employers may even wish to take an adverse workplace decision involving an LGBT employee to court to maintain maximum control over areas not as heavily regulated as the other protected categories in Title VII. That is the employer’s personal choice, but at least the employer now knows both sides of the issue.

page 506Some employers take a middle-ground position. That is, they do not have a specific policy of either support or prohibition, but they deal with issues as they arise on a case-by-case basis. Again, because the law is not as restrictive for this category of employees as it is for others and does not extend the same Title VII protections, the employer potentially (again, depending on the state the employer is in) has more leeway to choose the management approach that best suits his or her needs or desires.

The caution to be heeded is that simply because Title VII or the majority of state fair-employment practice laws do not prohibit discrimination on the basis of being LGBT does not mean that it is not prohibited by relevant state or local laws, and court decisions or decisions relating to closely connected issues such as privacy, right to free speech, interference with contractual relations, and so on. And keep in mind that the laws are changing every day. Employers concerned about workplace decisions should, at the very least, check such laws or case law in their jurisdiction before making final decisions. Remember that every single state has either a state or local law protecting LGBT employees in some way or another.

Even if the law is on the employer’s side, the employer may wish to consider other possible repercussions of restrictive employment policies in this area. An example of this is the Cracker Barrel restaurant chain, headquartered in Tennessee. Cracker Barrel operates a number of restaurants around the country. With no apparent motivating event, in 1991, the company announced that it would no longer employ people “whose sexual preferences fail to demonstrate normal heterosexual values which have been the foundation of families in our society.” Pursuant to this policy, Cracker Barrel summarily terminated its gay and lesbian employees. After doing so, it was the subject of vigorous opposition, mainly by the gay and lesbian community. Many of Cracker Barrel’s restaurants were picketed and denounced by vocal protesters. Gays and lesbians bought stock in order to have a say in its policies. Cracker Barrel later revoked the policy as overreactive. Even though the law permitted Cracker Barrel’s actions, some employers may wish to avoid the controversy exhibited here, particularly if there is no pressing need to address the issue. In a complete about-face, in 2002, Cracker Barrel’s board of directors voted to include gays and lesbians in its antidiscrimination policy.78

Despite all the information in this chapter, it is still up to the employer how the issue of LGBT employees in the workplace is to be handled. A word of caution should be given, however. If the employer decides to create a workplace inclusive of LGBT employees, it is generally done under the aegis of diversity and inclusion. Employers should be aware of the religious conflicts non-LGBT employees have alleged based on these policies. As the Buonanno v. AT&T Broadband, LLC case demonstrates at the conclusion of the chapter, the employer should not trample over the rights of other employees in order to address the issue of inclusion and avoid liability. In Buonanno, an employee with religious objections to homosexuality was terminated for refusing to sign a workplace document pledging him to value diversity, including on the basis of LGBT status. The court agreed that it was wrong for the employer to terminate the employee without trying to accommodate his religious beliefs.

page 507 

Management Tips

LO8

Policies and decisions in the sexual orientation and gender identity areas are rapidly evolving. The patchwork of state, federal, local, public, and private laws and policies we have discussed present the employer with the challenge of trying to do what is required for each jurisdiction in which the employer may operate, when, in fact, the requirements may be quite different. However, conclusions can be drawn about creating policy in the midst of such seeming chaos. In order to provide the maximum protection from liability for sexual orientation and gender identity–related issues, an employer can do several things:

· Use only relevant, work-related criteria for hiring, promotions, pay raises, discipline, training, and other workplace decisions.

· Keep inquiries about applicants’ personal lives at a minimum and make sure the requested information is relevant for the job.

· Have a policy ensuring all employees respect in the workplace, and ensure that all employees are not only aware of the policy and what it actually means, but they realize that swift appropriate action will be taken for violators.

· No matter what the employer’s policy about LGBT employees is, in the workplace, be sure the respect policy protects everyone from things like unsolicited negative statements about immutable and other characteristics such as race, religion, gender, gender identity, and sexual orientation.

· Take prompt action whenever there are complaints of violations of the policy or it sends the message that the policy is meaningless.

· Decide what position to take on sexual orientation and gender identity–related issues for policy purposes either proactively, before the issue arises, or defensively to meet the issue when it comes about; the latter has the benefit of specificity, the former the advantage of deliberate, strategic thinking.

· Be aware of the potential impact on LGBT employees of workplace policies regarding issues like bereavement leave, benefits, bringing significant others to office functions, accepting personal calls during work hours, and displaying personal items at work (photos, cards, political buttons, and so forth).

· If the employer decides to institute policies inclusive of LGBT employees, ensure that they are fair and evenly handled.

Chapter Summary

· Sexual orientation and gender identity discrimination is not included in Title VII. However, the EEOC has determined that both are a type of gender discrimination and the EEOC accepts and pursues claims.

· Many states and municipalities have passed protective legislation. Constitutional protection also may apply to public employees and thousands of workplaces have included sexual orientation and gender identity in their non-discrimination policies.

· Since Title VII does not actually include these categories, employers may have more leeway in this area to make employment decisions without regard to the same legal strictures applicable to other categories of employees included within Title VII.

· The safer approach is to base employment decisions on the person’s qualifications and fitness for the job, rather than on irrelevant characteristics about his or her personal life.

page 508