Trend Watch: A Closer Look at Expanded Workplace Protections for LGBT Employees

As a conscientious employer, you know that a fair and compliant workplace embraces diversity and guards against discrimination of any kind. Equally important, these workplace protections keep pace with our changing times and sensitivities.

Recent activities by the EEOC, as well as legal developments on the city, state and federal level, reflect these sensitivities – specifically regarding rights for lesbian, gay, bisexual and transgender (LGBT) employees.

Take the matter of sex discrimination in the workplace. Title VII of the Civil Rights Act of 1964 prohibits employment discrimination based on race, color, national origin, religion and sex. In July 2015, the Equal Employment Opportunity Commission (EEOC) issued a ruling to expand that definition. The agency clarified that discrimination against an employee for “sex-based preferences,” such as sexual orientation, is considered sex discrimination. It stated: “Discrimination on the basis of sexual orientation is premised on sex-based preferences, assumptions, expectations, stereotypes or norms.”

Years prior to this ruling, the EEOC determined in Macy v. Holder that intentional discrimination against transgender individuals was a form of sex discrimination and actionable under Title VII. Since that case in 2012, the EEOC has handled numerous claims of sexual orientation discrimination from private and public sector employees.

Sexual orientation discrimination is already prohibited under certain state and local laws.

Although it’s a best practice for all employers to uphold these expanded protections, the reality is that sexual orientation discrimination is already prohibited under certain state and local laws. In the more than 21 states that ban this type of workplace discrimination, the courts are much more likely to rule in favor of the employee in a legal dispute.

Additional Legal Advances for LGBT Individuals

The expanded definition of sex discrimination under Title VII isn’t the only development on the legal front. In other moves that affect the LGBT community, the U.S. Supreme Court decided on June 26, 2015, in Obergefell v. Hodges that all states must recognize and issue licenses for same-sex marriages. The decision was one of the most significant changes to constitutional law in years, with far-reaching implications for employers.

In light of these legal developments, employers should be especially diligent about preventing discrimination or harassment due to a person’s sexual orientation or gender identity. Additionally, from an HR perspective, you need to ensure you’re extending spousal privileges for same-sex married couples, including:

• Family and Medical Leave Act (FMLA) rights – Same-sex spouses are now eligible for FMLA leave for qualifying conditions or military deployment.
• Benefits plans – Same-sex spouses are also eligible for any benefits that include spousal participation, such as group medical policies or other benefit programs.
• Company policies – Keep a close eye on other company policies with spouse-specific terms (such as bereavement leave, non-FMLA medical leave and other time off policies) to ensure same-sex married couples are covered.

While we can’t predict what the new year holds for LGBT employees, we’ve seen a series of changes that foster inclusion and build a firm foundation for them in the workplace. Stay tuned for further developments.

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