Does Anyone Know the Rules … and What About Religion?
On the question of LGBT rights (actually, LGBTQQIAAP rights … you can look it up), federal law, the EEOC, some courts, other courts, state laws, local laws, Trump, and the military cannot seem to get on the same page. As an employer, particularly in view of the potential liabilities, what page should you be on?
Discrimination: How Can You Follow the Law if No One Knows What it Is?
Here is a summary of the discrimination legal landscape, rife with minefields and alligators … but at the same time, some things are coming into focus.
- Federal law (mainly, the comprehensive statute known as Title VII) prohibits discrimination on the basis or because of sex, but it does not specifically prohibit discrimination on the basis of sexual orientation, or discrimination against transgender individuals, or discrimination on the basis of gender identity or expression. However, the clear trend (with some hold-outs) is to interpret discrimination on the basis of “sex” to include discrimination based on sexual orientation and transgender status. For example, a Federal Court in western Pennsylvania ruled that an employer unlawfully discriminated on the basis of sex by terminating an employee, a male, for presenting at work as a female, and for terminating an employee based on sexual orientation.
- The EEOC, the federal government’s primary enforcement arm, takes the position that discrimination on the basis of sexual orientation, discrimination against transgender individuals, and discrimination based on gender identity or gender expression is In practice, that means that, today, the EEOC will initiate an action against an employer who, for instance, treats an LGBT employee differently or less favorably than other employees, who refuses to employ an individual who is transitioning or has transitioned to another gender, who refuses to allow a transgender individual to use the restroom appropriate for the gender the individual identifies with … and so on.
- President Trump disagrees, setting up a confrontation between the White House and a federal agency that, ostensibly, works in tandem with the White House. President Trump recently issued an Executive Order banning transgender people from the military, which is pushing back, setting up a confrontation between the Commander in Chief and those he commands.
- Pennsylvania law does not specifically prohibit discrimination based on sexual orientation or gender identity/expression (although, as of April 2016, that may not be so in respect to companies that do business with the state or receive state grants), but the legal trend referenced above still applies.
- Philadelphia has enacted an ordinance prohibiting discrimination based on sexual orientation or gender identity, requiring employers to allow employees to dress in accordance with their gender identity, and to fail to change an employee’s name or gender on employment forms or records, as the employee may request.
- In addition, reflective of where the law is heading, thirty-four Pennsylvania municipalities have passed ordinances prohibiting discrimination on the basis of sexual orientation and gender identity – and that list will grow. (Let me know if you want to determine if a particular municipality is on the list.)
The Culture War Over … Bathrooms
The bathroom has become a primary battleground in a growing culture war: what does an employer do about a male who identifies as a female and wishes to use the bathroom designated for females, over the strident objection of other female employees (and vice versa)?
Much of this has played out in the context of student rights. The Obama administration issued an order requiring schools to allow transgender students to use the bathrooms of their choice. A score of states then sued the federal government, contesting that order. The Trump administration, backed by Attorney General Sessions and opposed by Secretary of Education DeVos, rescinded that order, triggering a backlash from the other direction.
More important to employers, the EEOC mandates that employers allow employees to use the bathroom designated for the gender with which they identify, no matter their biological status. Some courts agree, some do not. And, at the same time, at least 16 states are considering laws that would restrict access to multi-user bathrooms on the basis of “biological sex.” Government agencies in other states take the opposite view. To date, the Supreme Court has refused to step in.
As for Pennsylvania and New Jersey, see below.
The Religion Issue
Adding another layer of confusion and complication, suppose an employer’s religion mandates that, contrary to anti-discrimination laws in the employer’s jurisdiction (for example, Philadelphia), the employer not hire gays, lesbians or transgender people? Should an employer’s religion supersede the law that all other employers are required to follow?
In recent years, the Supreme Court has been willing to find legal exemptions based on religion, and the question will be how far that envelope may be pushed. An interesting and somewhat analogous case is on the Supreme Court’s 2018 docket.
A Best Practices Recommendation
While the law remains somewhat muddled and in flux, for employers seeking to stay out of legal trouble (as opposed to employers seeking to further a particular political or religious viewpoint), certain best practices have emerged.
- The law is definitely trending toward the prohibition of discrimination based on sexual orientation. Depending on where your business is located (for example, Philadelphia and New Jersey), non-discrimination laws may already be in effect.
- Though perhaps not as quickly, the law is also trending toward prohibiting discrimination based on gender identity – i.e., when a male or female presents as the opposite sex. Again, in various jurisdiction, such as Philadelphia and New Jersey, non-discrimination laws may already be in effect.
- If the EEOC (at least as currently constituted) has its way, employers will be required to allow employees to use the bathrooms that conform with the employee’s gender identity (as opposed to a bathroom that conforms with the employee’s biological sex, or a “neutral” bathroom that can accommodate only one person at a time) … but only time will tell whether the EEOC will ultimately prevail on this point.
In Pennsylvania, the agency responsible for employment discrimination issues has not taken a position, but Pennsylvania federal courts seem to be tilting toward requiring employers to allow employees to use the bathroom that conforms with their gender identity.
In New Jersey, the agency responsible for employment discrimination issues in New Jersey will, as of now, require employers to allow employees to use the bathroom that conforms with their gender identity.
Often, it will be advisable to talk to a transgender individual, who may be seeking a way not to make waves.
Let us know if we can help.
Michael G. Trachtman is MEA’s general counsel and the President of Powell Trachtman Logan Carrle & Lombardo P.C., a 30+ attorney King of Prussia-based law firm that has represented businesses and business people for over twenty-five years. He can be contacted at firstname.lastname@example.org. See www.powelltrachtman.com for more information.