The Equal Employment Opportunity Commission (“EEOC”) recently issued guidance regarding protections for lesbian, gay, bisexual and transgender (“LGBT”) employees. While Title VII of the Civil Rights Act of 1964, as amended (“Title VII”) does not specifically list sexual orientation as a protected class, the EEOC is actively enforcing protections for individuals based on their sexual orientation, premised on a line of cases that started with Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). The Price Waterhouse case held that a claim for sex discrimination could be based on sexual stereotypes. There, a woman was not promoted and was told that, among other things, she needed to wear makeup. The Court held that she was discriminated against on the basis of her sex, because she did not conform to stereotypes of how women should behave.

The EEOC has used this line of cases to provide protections to LGBT individuals, and its Strategic Enforcement Plan, adopted in 2012, lists coverage of LGBT issues as an enforcement priority for fiscal years 2013 through 2016. The EEOC also has held that discrimination against an individual because that person is transgendered is discrimination because of sex, and therefore is explicitly prohibited by Title VII.

The Guidance notes that the EEOC has instructed its investigators to take and investigate claims involving transgendered individuals, as well as lesbian, gay and bisexual individuals. The EEOC began tracking data on these claims in January 2013. Through June 2014, the EEOC has taken a total of 1,585 such charges. The EEOC reports that it has obtained total monetary benefits for charging parties totaling over two million dollars during this time.

In addition, the EEOC notes that it has begun to file LGBT-related lawsuits under Title VII, and lists two cases, each involving alleged discrimination against a transgendered individual who was transitioning from male to female.

The EEOC’s guidance is available on the EEOC’s website at www.eeoc.gov.

What This Means For You: You should be aware that, although neither Title VII nor the Pennsylvania Human Relations Act specifically provides protection for employees on the basis of sexual orientation, there is a growing trend to use existing anti-discrimination laws to provide such protection. Before you make employment decisions against LGBT employees, you should review the circumstances to ensure that any decisions made are based on legitimate, nondiscriminatory reasons.

If you have any questions about this or any other employment or labor law matter, please contact S. Whitney Rahman at (717) 509-7237, or by e-mail at swr@blakingerthomas.com

This update is provided for informational purposes only and should not be
construed as legal advice or as creating an attorney-client relationship
where one does not already exist.