EEOC Makes Protecting Rights Of LGBT Workers A Top Priority

As the debate over gay marriage continues to intensify throughout the country, so does the issue of workplace rights for the lesbian, gay, bisexual and transgender (LGBT) community. LGBT workers currently face substantial legal uncertainty when it comes to workplace discrimination. They do not currently benefit from nationwide protections against discrimination. Instead, LGBT protections consist of a confusing patchwork of judicial and agency interpretations combined with state, municipal and local laws that make discrimination actionable only under certain theories or at specific geographic locations. Protections can vary widely by location, sometimes even by county within the same state.1 As a result, LGBT workers continue to face discrimination in employment with relatively few, if any, legal protections.

The United States Equal Employment Opportunity Commission (EEOC) has, however, taken notice of this blind spot in workplace discrimination laws and has reversed course. Recently, it has amplified its interest in protecting the rights of LGBT workers nationwide by broadly interpreting Title VII of the Civil Rights Act of 1964 (Title VII). It is no coincidence that the EEOC's newly released Strategic Enforcement Plan for 2013-2016 lists "coverage of lesbian, gay, bisexual, and transgender individuals under Title VII" as one of its top six national enforcement priorities. This means that employers should expect the EEOC to take significant enforcement actions in the near future and litigate issues more aggressively in this area going forward.

The Legal Status Quo

As mentioned, there is no national law explicitly proscribing workplace discrimination based on sexual orientation or gender identity. The language of Title VII only protects individuals on the basis of "race, color, religion, sex, or natural origin." Efforts by LGBT advocates to amend Title VII in order to add sexual orientation, expression, and identity through laws such as The Employment Non-Discrimination Act (ENDA) have consistently failed since 1994. Nevertheless, at least 21 states and more than 166 municipalities have covered this gap by enacting local laws covering sexual orientation, and 16 states have gone as far as including prohibitions on gender identity or expression to protect transgender employees. Some private and public employers have also attempted to cover this void by preemptively adopting internal policies forbidding discrimination on those bases as well.

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