Legal Blog

Checklist: How Employers Can Avoid an EEOC Sex Discrimination Lawsuit

Guidelines to Protect Transgender and Non-heterosexual Employees’ Rights

transgenderThree recent, landmark cases involving the Equal Employment Opportunity Commission (EEOC) and LGBTQ* (lesbian, gay, bisexual, transgender, questioning, and other non-heterosexual or non-cisgender-identified) employees have redefined how employers should view sex discrimination laws. In Lusardi v. McHugh, the EEOC upheld a transgender woman’s right to use a women’s restroom. The case involved a U.S. Army civilian employee who claimed that, by forbidding her to use a restroom reserved for her female (assigned at birth) colleagues, her employer was denying her rights under Title VII of the Civil Rights Act of 1964. In Baldwin v. Foxx, a gay man claimed he lost out on a permanent position with the Federal Aviation Administration because of his sexual orientation. The EEOC again cited Title VII’s protections against sexual discrimination and concluded that “sexual orientation is inseparable from and inescapably linked to sex and . . . allegations of sexual orientation discrimination involve sex-based considerations.” Finally, in a lawsuit filed on June 5, 2015, against Deluxe Financial Services Inc., the EEOC alleges the company unlawfully prohibited a transgendered employee from using the restroom of her choice. Though it affects a private sector employer, the suit draws upon the government-facing Lusardi decision. These cases warrant private and public employers’ attention, and should prompt the question: How can employers affirm the rights of their LGBTQ* employees and avoid Title VII violations? In interpreting the EEOC’s recent litigation and associated guidance, Offit Kurman’s labor and employment attorneys recommend a combination of updates to workplace policy and procedures, and have offered a comprehensive checklist below:

Title VII Rights for LGBT Employees: Compliance Checklist

General Considerations

  • Understand that gender and sexual orientation discrimination is sexual discrimination. As it stands, the law essentially treats all aspects of a person’s gender and sexual identity equally, meaning all are protected and should be respected.
  • Develop policies proactively. Even if an employer is unaware of any LGBTQ* employees on staff, workplace policies should include provisions explicitly defining sexual harassment and stating zero tolerance for offensive behaviors directed at person for their gender, orientation or other components of sexual identity.
  • Review and revise current policies. Common policies, such as gendered dress code rules, may now be problematic given the recent changes in the law.  Employers should consider removing gendered dress code rules in favor of guidelines that emphasize professionalism (and, depending on the environment, safety) without making reference to gender.
  • Respect each employee’s chosen name and gender identity. Use of nouns and pronouns should not be contingent on whether an individual has undergone gender reassignment surgery or not.
  • Promote inclusion and training. Employers should provide diversity training to all new and existing employees.

Employment law is constantly advancing, and the EEOC has proven itself a vigorous enforcer of employees’ Title VII rights.  Additionally, many state and local laws provide explicit protection for LGBTQ* employees, including the remedy of punitive damages for employers who violate discrimination laws.  Employers should continually review and update their policies, and take appropriate measures to affirm the rights of their LGBTQ* employees. For more information about this topic, read labor and employment attorney April Rancier’s article, “EEOC Ruling Protects Transgendered Employees,” available here. If you have any questions about this or a related topic, please contact a member of our labor and employment practice group.

ABOUT APRIL RANCIER

Labor and Employment Attorney April Rancier arancier@offitkurman.com | 410.209.6426 April Rancier is an experienced labor and employment litigator who is well versed in both state and federal court proceedings with a practice concentration in Employment Discrimination. While Ms. Rancier focused in discrimination matters, she provides comprehensive and practical guidance for clients in the whole gamut of employee relations lssues that affect employers. These include issues arising out of claims of retaliation, claims of discrimination and harassment filed under Title VII and state and local anti-discrimination laws, and claims brought under federal statutes such as the Family Medical Leave Act (FMLA), the Age Discrimination in Employment Act (ADEA), and American with Disabilities Act (ADA). Working as a labor attorney, Ms. Rancier handles many different labor issues, wrongful termination claims, non-compete agreements, employment agreements, and severance agreements. Ms. Rancier also handles other work related issues such as non-compete agreements, employment contracts, severance agreements and general contract claims, employment-related tort claims and other business and professional tort claims.   You can also connect with Offit Kurman via FacebookTwitterGoogle+YouTube, and LinkedIn.

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