LGBTQ+ Discrimination in the Workplace
I have represented members of the gay, lesbian, bisexual, and transgender community in employment discrimination matters. Members of the LGBT community can often experience discrimination including harassment, discrimination, retaliation, and wrongful termination.
Does the law protect LGBT individuals in the workplace?
With the recent conclusion of the Bostock v. Clayton case ruling in favor of Gerald Bostock, a man who sued his employer based on sexual orientation along with the Equal Employment Opportunity Commission, the U.S. Supreme Court determined that Title VII of the Civil Rights Act of 1964 prohibited employers from discriminating against people because of their sexual orientation or gender identity. In ruling, the Court wrote, “[to] discriminate against any individual ‘because of such individual’s race, color, religion, sex, or national origin.’ Looking to the ordinary public meaning of each word and phrase comprising that provision, the Court interpreted to mean that an employer violates Title VII when it intentionally fires an individual employee based, at least in part, on sex.” This does include discrimination against one’s sexual orientation, gender identity, and people who identify as transexual.
A. State & Federal Law
Because of the aforementioned ruling, State and Federal law now protect employees from discrimination because of their sexual orientation and gender identity.
You must act quickly to preserve your sexual orientation discrimination claim or gender identity discrimination claim. For a private employer, there are short and strict deadlines statute of limitations for sex discrimination cases. From the date of the incident, you must act within 180 days to preserve your claims under the Texas Labor Code and within 300 days to preserve your claims under Title VII.
B. Federal Law Prohibits Discrimination Based on Gender Stereotypes
The 5th Circuit decided in EEOC v. Boh Brothers Construction, L.L.C. that an employer cannot discriminate against employees based on gender stereotypes. In this case, the plaintiff suffered, “almost-daily verbal and physical harassment because Woods did not conform to Wolfe’s view of how a man should act.”
The 5th Circuit Has Twice Left Sexual Orientation Discrimination and Transgender Discrimination an Open Question
The issue of sexual orientation discrimination has come before the 5th Circuit before, and the Court declined to opine, saying in Brandon v. Sage Corporation, “We do not opine here whether Brandon correctly surmised that Eure [the apparently transgender employee] may claim some protection under Title VII.” In Stewart v. BrownGreer, P.L.C., the Court also left open the question when it assumed for the sake of the argument that Title VII of the Civil Rights Act of 1964 protected employees from sexual orientation discrimination.
C. Houston Non-discrimination Ordinance
Some Texas cities, such as Austin and Dallas, have non-discrimination ordinances and agencies to investigate sexual orientation discrimination in the workplace. Unfortunately, in November 2015 Houston’s non-discrimination ordinance (HERO) was overturned by popular vote, removing municipal protections for gay, lesbian, bisexual, and transgendered individuals in the workplace.
Does the EEOC investigate LGBT employment discrimination?
Yes. The EEOC does investigate LGBT employment discrimination claims, and in some cases, the EEOC has prioritized cases involving LGBT workplace rights. In December 2012, the EEOC developed the Strategic Enforcement Plan (SEP) which made a the "coverage of lesbian, gay, bisexual and transgender individuals under Title VII's sex discrimination provisions, as they may apply" one of the agency’s “top priorities.” Currently, the EEOC has joined litigation, written briefs, and resolved cases involving LGBT discrimination in the workplace.
What does LGBT discrimination look like?
A few ways an employer may engage in LGBT employment discrimination includes: failing to hire, failing to promote, terminating, and/or retaliating against LGBT individuals who complain about discrimination.
Examples of discrimination may include:
- Homophobic slurs;
- Transphobic slurs;
- Gender stereotypes, such as acting “too effeminate” or “too butch;”
- Offensive mocking;
- Misgendering trans employees;
- Forcing trans employees to use a certain restroom; and
- Failure to stop other employees from sexual orientation discrimination after making a complaint.
Contact me, your Texas Employment Attorney
As a member of the LGBT community myself, I have an affinity for helping members of Houston’s LGBT community. if you think you have experienced LGBT discrimination in the workplace including, harassment, retaliation, or wrongful termination. Call me, your houston employment attorney or contact me here to schedule a consultation.