Human Resources and Law

It’s update time for employee handbooks

Changes in American society are resulting in new legal decisions.

July 31, 2015
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Sexual orientation is included under sex discrimination, the Equal Employment Opportunity Commission said last week when it announced its decision in the case of Complainant v. Anthony Foxx, Secretary, Department of Transportation (Federal Aviation Administration).

In the case, an air traffic controller alleged his employer, the FAA, discriminated against him based on his sexual orientation. The EEOC said the claim was valid based on sex under Title VII of the Civil Rights Act of 1964.

The outcome of the case was not a shock to many in the legal community.

“I think this EEOC decision wasn’t a surprise. Three years ago, in Macy v. Department of Justice, the EEOC decided employment discrimination against a person because they were transgender is a form of sex discrimination under Title VII,” explained Gary Chamberlin, attorney with Miller Johnson.

In the 2012 case, the EEOC said the employee was being discriminated against based on sex because the individual was not behaving or dressing in the way the employer thought the person should based on gender or sex stereotypes.

“This current case from last week goes a step broader and says employment discrimination because of sexual orientation, when it’s known or believed by the employer, is also inherently discrimination based on someone’s sex. It’s a violation of Title VII.

“The legal theory has nothing to do with whether the individual is masculine enough in appearance, dress, etc. It had to do with the fact the employer knew he was gay.”

While the case involved a federal employee and a federal agency, Chamberlin said the decision could impact private employers, as well.

“They are signaling to the private sector that they believe any kind of discrimination or treating people differently in any condition of employment — hiring, firing, pay, discipline, promotions or lack of promotions — because of either transgender status or, now, sexual orientation is going to be deemed a violation of Title VII,” he said.

“If a private sector employee thinks they were discriminated against for their sexual orientation and they file a discrimination charge with EEOC, the EEOC could take the case and file a lawsuit on their behalf against the employer, or they could take a stance that there is some probable cause that discrimination occurred and require the employee to pursue private civil litigation. It’s then up to the courts to decide whether or not they will adopt the EEOC view.”

Chamberlin said courts tend to follow decisions by federal enforcement agencies.

“There are a number of courts that have followed the EEOC’s decision from 2012 and have adopted the same type of view in civil litigation,” he noted. “Whether they will in this one is yet to be seen, but my gut sense is, in time, courts will begin adopting this view. Will there be some differences of opinion in different courts? I think there will be.”

Chamberlin said his advice to clients is to dust off their employee handbooks and, if sexual orientation and gender identity are not already included in policies against discrimination, add them.

“It makes good business sense and it’s good for diversity efforts, even if it’s not forced on them,” he said.

He noted the majority of Fortune 500 companies, as well as many other companies, already have adopted these policy changes — many of them years ago.

Chamberlin said employers also should consider including sexual orientation and gender identity discrimination in their harassment, diversity or sensitivity training.

Finally, he said dress code policies also should be reviewed.

“An employer should examine any policy about dress, grooming or appearance and start talking at the higher management levels about whether they are going to require rigid enforcement of those policies, especially toward someone who is in the transition phase, or are they going to make some individual exceptions,” Chamberlin said.

He said thinking about bathrooms and changing facilities is also a worthy conversation for management to have, noting OSHA recently issued a policy guidance to employers about restroom access for transgender employees, which essentially said employers are required to provide adequate toilet facilities.

“Do they have a unisex bathroom, family bathroom, etc., as opposed to just a large community bathroom for each sex?” he said.

Chamberlin said the recent U.S. Supreme Court decision on same sex marriage, the EEOC decision, and guidelines by other federal agencies such as OSHA indicate a move within the legal realm to align with societal changes on the issue of sexual orientation and gender identity.

“American society and culture clearly is getting more accepting of all sorts of alternative lifestyles,” he said. “The law often reflects our American social norms and expectations. It reflects our culture.”

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