Is the writing on the wall for an extension of Title VII protections to LGBTQ employees? In a recent landmark decision, the Seventh Circuit Court of Appeals became the first federal court of appeals in the nation to rule sexual orientation claims are actionable under Title VII of the Civil Rights Act of 1964. Although not binding on courts (or employers) in Ohio, the decision is widely perceived as the first in a series of dominoes that could bring broader protections for LGBTQ employees.
What Does Title VII Cover?
On its face, Title VII prohibits workplace discrimination on the basis of an individual’s race, color, religion, sex or national origin. Federal courts initially interpreted “sex” narrowly; however, over the years, this interpretation has broadened. For instance, it’s been deemed to encompass claims alleging discrimination based on gender non-conformity, such as situations where employers allegedly discriminated against workers for not living up to stereotypical gender norms.
In 2015, the Equal Employment Opportunity Commission issued an administrative decision (Baldwin v. Foxx) ruling that “sexual orientation is inherently a ‘sex-based consideration’ and an allegation of discrimination based on sexual orientation is necessarily an allegation of sex discrimination under Title VII.” Against this backdrop, the Seventh Circuit’s en banc decision concluded that “discrimination on the basis of sexual orientation is a form of sex discrimination” under Title VII.
Even without federal protection for LGBTQ employees, almost half of our states have laws prohibiting sexual orientation discrimination. Ohio law, however, only protects state workers from such discrimination.
What Does This Mean for Ohio Employers?
Employers should prepare for what appears to be an inevitable extension of Title VII protections for LGBTQ employees. Accordingly, employers should take proactive steps to ensure sexual orientation is treated the same as other protected classes. At a minimum, this provides a great opportunity for employers to review their internal practices, procedures and policies – such as handbooks, training sessions, workplace investigations, hiring methods and discipline and discharge procedures.
Recruiting – In recruiting materials and job advertisements, employers should avoid limitations precluding individuals in protected classes from being considered as applicants. For example, statements such as “Help wanted-male” or “U.S. citizens only” are blatantly problematic. Employers must also be careful to avoid veiled discrimination in their recruiting efforts. For instance, “start your career,” “fresh” or “young outlook” could imply that older employees aren’t considered. Additionally, employers should review hiring forms to determine whether irrelevant information is being requested that would reveal an applicant’s gender identity, sexual orientation or other protected characteristics. Employers should avoid requesting applicants to disclose any prior names by which they were previously known, which could reveal an applicant’s gender transition or change in marital status. Such inquiries should be made only after a conditional offer and only if relevant (e.g., to conduct a background check).
Hiring – Employers should avoid obtaining information about whether an individual falls into a protected class. In defending against a “failure to hire” claim, an employer’s best defense is that it didn’t know of the protected characteristic. From a baseline perspective, employers shouldn’t be asking questions about sexual orientation during the application and interview process. Keep in mind that questions frequently used to build rapport during an interview (e.g., how do you spend your free time?) are not job-related and can be construed as an attempt to elicit information about protected characteristics. This also extends to the use of social media as a screening tool. To help limit the risks associated with online searches, employers should develop a written protocol for conducting each search. As part of this protocol, the individual conducting the search shouldn’t be the ultimate decision-maker, and the decision-maker should only be provided with a summarized report not containing information pertaining to protected characteristics.
Workplace Investigations – As Title VII protections for LGBTQ employees continue to evolve, one area where employers can help protect themselves from liability is in how they handle internal complaints of sexual orientation discrimination or harassment. From an employee-relations and morale standpoint alone, these complaints should be promptly and thoroughly investigated. If the investigation establishes that such conduct occurred, prompt action should be taken to stop the conduct, remedy the situation and prevent similar conduct from occurring in the future. Further, employers should ensure the individual making the complaint is not retaliated against.
Employment Decisions – As a rule of thumb, employment decisions – including discipline and discharge – must be made for legitimate, non-discriminatory and non-retaliatory reasons. One way to eliminate the perception that a protected characteristic had any impact on an employment decision is to ensure similar behavior is consistently rewarded or punished in a like manner. This won’t change should Title VII protections expand to LGBTQ employees.
Even if decisions from other appeals courts don’t immediately materialize, employers can still face liability under other theories, including gender non-conformity. Similarly, the law for employee benefits is rapidly developing, especially as it relates to coverage for gender reassignment therapies and surgeries. In addition, the OFCCP prohibits federal contractors and subcontractors from discriminating on the basis of sexual orientation or gender identity. Moving forward, employers should be prepared to treat an employee’s LGBTQ status as it would any other protected characteristic. James Patrick