Emerging Issues in
Protections for LGBT Employees
July 20, 2015
Jeff Brodin, Brodin HR Law
Mary Jo O’Neill, U.S. EEOC
Regional Attorney, Phoenix Office
An individual’s internal sense of their gender,
whether or not it is different from the individual’s
assigned sex at birth
Individuals with a gender identity that is different from
the sex assigned to them at birth
The process by which a transgender person goes
from living and working as one gender to another
Gender Expression means the manner
in which an individual’s gender identity is
expressed, including, but not limited to,
through dress, appearance, manner, or
speech, whether or not that expression is
different from that traditionally associated
with the individual’s assigned sex at birth.
Why Does This Matter to
7 million LGBT employees in the U.S. private sector workforce
Surveys say 48% of LGBT employees are “closeted” at work
Harvard Business Review Study shows “out” employees are more likely to
Employees who are not “out” spend time and energy concealing their
sexual orientation, which results in decreased productivity
LGBT Employees in the Federal Government
According to the Office of Personnel
Management, the Federal Government has
approximately 2.6 million civilian employees
in the Executive Branch. Approximately
200,000 LGBT individuals work in the
− Williams Institute, “Bias in the Workplace: Consistent Evidence of Sexual
Orientation and Gender Identity Discrimination” (2007)
Against LGBT Employees
of LGB individuals report
Brad Sears & Christy Mallory, The
Williams Institute, Documented Evidence of
Employment Discrimination & Its Effects on
LGBT People (2011)
In the first national survey of transgender people:
• Respondents experienced unemployment at twice the
rate of the general population.
• 50% of respondents were harassed at work.
• 26% reported losing a job due to being transgender or
− National Gay and Lesbian Task Force and National Center for Transgender Equality, “Injustice at Every Turn:
A Report of the National Transgender Discrimination Survey” (2011)
Against Gay Men
Data from the National Health and Social Life Survey, the
General Social Survey, the United States Census, and
the National Health and Nutrition Examination Survey
show that gay men earn 10% to 32% less than otherwise
similarly qualified heterosexual men.
− Williams Institute, “Bias in the Workplace: Consistent Evidence of Sexual Orientation
and Gender Identity Discrimination” (2007)
The Religious Exemption
for Sexual Orientation
• Many state jurisdictions provide an
exemption for religious employers
from the requirement of sexual
• Applies to a bona fide church or
other religious institution.
• Exemption generally applies where
an employment position is directly
related to the operation of the
religious institution and closely
connected with the primary purposes
of the religious institution.
• Many state jurisdictions provide for reasonable accommodation
for transgender employees.
• Some states provide a dress code or policy exception, and refer
to reasonable accommodation based on the “health and safety
needs of the individual.”
• Most accommodation issues are likely to relate to dress code or
transition to use of the “opposite sex” restroom.
• By analogy, “interactive process” and “undue hardship”
standards are likely to apply.
Local Arizona Protections
• February 2013 Ordinance
• “Bathroom Bill”
• State employees benefits
• 1999 Ordinance
• Civil unions
• March 2013 Ordinance
• Civil Unions
Policy updates & training
Title VII of the Civil Rights Act of 1964
• Language of Title VII does not explicitly
include sexual orientation or gender
• Title VII prohibits discrimination against
an employee “because of such individual's
race, color, religion, sex, or national origin.”
42 U.S.C. § 2000e-2.
History of application of
Title VII to LGBT employees:
• In the past, courts often rejected Title VII claims by LGBT
employees, interpreting Title VII to apply strictly to
biological sex, and holding that Congress did not intend to
protect LGBT people.
• However, the U.S. Supreme Court decided two cases that
– Title VII is not just about biological sex,
but also about gender stereotypes; and
– Title VII covers same-sex harassment, even if Congress
didn’t explicitly contemplate that.
– Price Waterhouse v. Hopkins, 490 U.S. 228 (1989)
– Oncale v. Sundown Offshore Oil Services, 523 U.S. 75
– In Price Waterhouse, the Supreme Court found that
Title VII prohibits sex-stereotyping on the basis of
• “[W]e are beyond the day when an employer could
evaluate employees by assuming or insisting that they
matched the stereotype associated with their group, for
"'[i]n forbidding employers to discriminate against
individuals because of their sex, Congress intended to
strike at the entire spectrum of disparate treatment of
men and women resulting from sex stereotypes.'" Price
Waterhouse v. Hopkins, 490 U.S. 228, 251 (1989) (quoting
Los Angeles Dept. of Water and Power v. Manhart, 435
U.S. 702, 707, n. 13 (1978)).
Oncale v. Sundowner Offshoreservices, Inc.
– In Oncale, the Court held that Title VII prohibits same-sex
• “[M]ale-on-male sexual harassment in the workplace was
assuredly not the principal evil Congress was concerned with
when it enacted Title VII. But statutory prohibitions often go
beyond the principal evil to cover reasonably comparable evils,
and it is ultimately the provisions of our laws rather than the
principal concerns of our legislators by which we are governed.
Title VII prohibits ‘discrimination . . . because of . . . sex’ in the
‘terms’ or ‘conditions’ of employment. Our holding that this
includes sexual harassment must extend to sexual harassment of
any kind that meets the statutory requirements.” Oncale v.
Sundown Offshore Servs., 523 U.S. 75, 79-80 (1998).
Emerging and Developing Issues:
• So Title VII does not contain an explicit prohibition of
discrimination on the basis of sexual orientation or
• BUT employees can still bring a claim
under Title VII by arguing that they
were the victims of sex-stereotyping
and/or discrimination “on the basis of
sex” or “because of sex.”
Post Price Waterhouse and Oncale:
Some Courts have held that LGB employees are
protected from same-sex sexual harassment and
•Nichols v. Azteca Restaurant Enterprises (9th Cir. 2001)
(harassment of restaurant employee based on gender
•Rene v. MGM Grand Hotel (9th Cir. 2002) (sexual
harassment of gay male hotel employee).
•Prowel v. Wise Business Forms (3d Cir. 2009) (gender
stereotyping of gay male machine operator).
EEOC Accomplishments: LGBT
• So What Has the Commission Been Doing?
– Intake/Investigations/ Conciliations
– Intergovernmental Partnering
– Internal Training/External Outreach
– Federal Sector Decisions
– Public Conciliations
– Litigation (Including Amicus Curiae Briefs)
What Can Be Done?
• Employees and applicants have the right to file charges of
discrimination against employers, employment agencies and
unions based on sexual orientation or gender identity under
• Employer must have 15 or more employees and Charge has
to be filed within 300 days of the last act of discrimination.
• See Intake Questionnaire.
• See Charge Form.
• Employer gets a copy of the Charge within 10 days.
• Mediation is an option.
• Litigation by Individual or the EEOC or DOJ.
EEOC Accomplishments: LGBT
– Federal Sector Decisions
• Macy v. Dep’t of Justice, EEOC Appeal No. 0120120821, 2012 WL 1435995
(April 20, 2012) (holding that intentional discrimination against transgender
individual because that person is transgender is, by definition, discrimination
based on sex and therefore violates Title VII)
• Jameson v. U.S. Postal Service, EEOC Appeal No. 0120130992, 2013 WL
2368729 (May 21, 2013) (intentional misuse of employee’s new name and
pronoun may cause harm to transitioning employee and constitute sex-based
discrimination and/or harassment)
• ____ v. Foxx – EEOC finds in July 2015 that sexual orientation discrimination
in the federal sector violates Title VII.
Mia Macy, a police detective in Phoenix,
applies for a job at a crime lab with ATF
in San Francisco while she is a man. She
is given a conditional offer pending a
background check. She informs them that
she was in the process of transitioning
from male to female. Five days later, she
is informed the position will not be filled.
Macy alleges violation of Title VII in
discriminating against her on the basis of
“gender identity” and “sex stereotyping.”
She wins on appeal. Macy v. Dept. of
Lusardi v. McHugh EEOC Appeal (April 12,
• In a landmark ruling issued on April 1,
2015, the Equal Employment
Opportunity Commission (EEOC)
determined that some of the most
common forms of harassment faced by
transgender employees constitute
unlawful discrimination under Title VII,
the federal sex discrimination law. The
decision found that the Department of
the Army discriminated against Tamara
Lusardi, a transgender employee who
transitioned from male to female on
the job, by barring her from using the
same restroom as all other female
employees, and by her supervisors’
continued intentional use of male
names and pronouns in referring to Ms.
Lusardi after her transition.