This week the U.S. Supreme Court agreed to review whether a landmark federal employment discrimination law banning sex discrimination also applies to individuals discriminated against for their sexual orientation or gender identification. LGBT workplace discrimination will be the central focus of the Supreme Court review.

The Overview

State courts are torn over Title VII of the Civil Rights Act, which “prohibits employment discrimination based on race, color, religion, sex and national origin.” While supporters of LGBT rights seek further protection from workplace discrimination under Title VII of the Civil Rights Act, the Trump administration states that individuals discriminated against for their sexual orientation or gender identification are not protected under the federal law. The Supreme Court will begin hearing arguments on the three cases on Monday, October 7th, 2019. “This is a central issue of importance for the LGBT community. Many ask if Title VII of the Civil Rights Act of 1964 protects individuals discriminated against on the basis of sexual orientation, and the answer is going to come in the midst of the 2020 election” says David Hakimfar, attorney and member of Pride Legal. “Having a ‘conservative’ majority in the Supreme Court can be viewed as a disadvantage in the eyes of the LGB community, and this case will definitely test the forward-thinking ability of the current Supreme Court justices. The nation’s eyes will be placed mostly on newly-elected Justice Brett Kavanaugh”, Hakimfar continues. The Supreme Court will hear three cases, two of which debate LGB workplace discrimination (Bostock v. Clayton and Altitude v. Zarda), while the last focuses on gender identity. “The American public, specifically the LGBT community, would be utterly shocked if the Supreme Court found that it is legal to fire an employee if they are gay or lesbian. It’s difficult to fathom but is a completely feasible outcome, considering the 5-4 ‘conservative’ majority”, Hakimfar explains. LGB Workplace Discrimination | Updated 2019

The LGBT Workplace Discrimination Cases

Altitude v. Zard

Altitude v. Zarda debates the legality of firing an employee based on sexual orientation. Donald Zarda was fired from his job as a skydiving instructor at Altitude Express after telling a customer he was gay in an effort to make her feel more comfortable. Altitude Express stated that Zarda was fired for conducting “inappropriate behavior in the workplace,” while Zarda’s lawyer argued he was fired for expressing his sexual orientation.

Bostock v. Clayton

In 2013, Gerald Bostock, a gay man, was fired from his job as a Clayton County child welfare services coordinator. Clayton County stated the reason for Bostock’s termination was because he was engaging in “conduct unbecoming of its employees.” Shortly after his termination, Bostock filed a lawsuit against Clayton County, alleging he was discriminated against on the basis of sexual orientation.

R.G. & G.R v. EEOC

Aimme Stephens, a transitioning woman, was fired from her job as a funeral director two weeks after she told her employer she was transgender. The funeral home released a statement stating that Stephen’s appearance would “disrupt the healing process of grieving families.” Transgender Workplace Discrimination | Pride Legal

The Impact

While LGBT individuals seek protection under Title VII of the Civil Rights Act of 1964, the Trump Administration has stated that the current law does not protect such individuals from employment discrimination on the basis of sexual orientation. “At Pride Legal, we believe individuals of the LGBT community deserve the same rights and protection as all other Americans,” Hakimfar says. “Letting individuals of the LGBT community have access to guaranteed protection under the law would be truly monumental. Ridding America of such an ignorant hindrance will truly be instrumental in propelling the LGBT community into a state of true equality.”

Recent Changes

During the last days of Trump’s administration, the Department of Health and Human Services (HHS) adopted final rules on the previous 45 CFP 75.300(c). The recent changes narrowed down LGBTQ discrimination protections in receiving benefits of HHS programs and treatment in same-sex marriage. However, the new presidential transition is bringing new developments to the conversation. Since earlier this year, Joe Biden has been issuing and is continuing to make new changes to extend protections against discrimination for the LBGQT community. On March 31, 2021, the Department of Defense released detailed directives on reversing transgender in the military ban which was previously set forth under Trump.

How Can I Sue For Workplace Discrimination?

California law protects all individuals from workplace discrimination or harassment. In California, there are two ways a discrimination claim can be filed, either with the state administrative agency California Department of Fair Employment and Housing (DFEH) or federal administrative agency, the Equal Employment Opportunity Commission (EEOC).

To get started with a workplace harassment claim, you should get in contact with an attorney. Although it is not required that employees must have attorneys for filing a discrimination claim, it is recommended. Unrepresented employees may run into risks of losing or harming the case due to issues of mishandling the case and legal complexity in some areas. The typical route one must go is first to start an investigation through the employer. In some cases, the company will take the correct steps and actions to correct the issues that have arisen. If the company fails to provide adequate compensation or does not properly take care of the issue, then a lawsuit may be filed against the employer. Your attorney will help you file a complaint with the EEOC, and once the investigation is complete, the lawsuit may continue. Filing the claim with the EEOC is basically the ‘ticket’ to the lawsuit. The EEOC will investigate the complaint and into the employer to find out whether or not a violation has occurred. The investigation process typically can take up to 180 days, and once the investigation is complete, the EEOC will issue a letter stating your right to sue. Your attorney will handle the case entirely, handling all EEOC claims and any issues arising with your attorney.

F.A.Q.s:

Q: Can my employer purposely misgender me?

A: No, your employer cannot disrespect your gender identity. California law recognizes all gender identities and non-binaries. Once an employee has told their employer how they want to be gendered, an employer cannot willingly misgender an employee. If an employer simply did not know or was not aware of how an employee wanted to be gendered, they could not be at fault. If your employer repeatedly misgenders an employee, that could be grounds for illegal harassment.

Q: Am I protected If I transition on the job?

A: Yes, California and federal law protect any employee while they’re transitioning on the job. An employer cannot discriminate, harass, or mistreat an employee if they are transitioning.

Q: Can I use whichever bathroom I want at work?

A: That depends. California law still requires bathrooms to be deemed safe and appropriate, so it’s best to stick with the gender in which you identify. If a bathroom stall says unisex, non-binary, or all gender, then it’s safe to use whichever bathroom you please.

Q: Can I be asked my sexual identity during my interview? 

A: No, your employer cannot ask you for your gender identity or expression during the interview process. This could lead to a discrimination case, as the employee could state that the employer did not hire them because of their gender identity or expression.

Contact Pride Legal

If you or a loved one has been discriminated against on the basis of sexual orientation, we invite you to contact us at Pride Legal for legal counseling or any further questions. To protect your rights, hire someone who understands them.