Protection from workplace discrimination has expanded ten-fold in the last 70 year, reflective of our cultural progress within that time. Women, people of color, those of all faiths, ages and nationalities – are shielded under state and federal statutes from adverse employment action on these bases.
Yet even as this year marks the 50th anniversary of the Stonewall Riots, gay, lesbian, bisexual and transgender individuals still are entitled to the fewest employment protections under the law. California, at least, is known as one of if not the most LGBT-friendly states for workers whose sexuality or gender identity does not adhere to “traditional” norms.
The California Fair Housing and Employment Act expressly protects workers and applicants on the basis of sexual orientation, gender identity and gender expression. Federal law, unfortunately, does not, and many states don’t have the supplemental protections that California enjoys.
That doesn’t mean of course that workers still don’t face these challenges, but with an experienced LGBT employment discrimination attorney to help fight back, your odds of success are much more favorable.
U.S. Supreme Court to Take on LGBT Discrimination
LGBT workers continue to find themselves facing down discrimination that threatens their livelihood. CNN Business recently detailed this struggle by highlighting the fact that the U.S. Supreme Court has agreed to review an appeal of a funeral home over the U.S. Court of Appeals for the Sixth Circuit’s ruling in favor of a transgender employee.
According to court records, plaintiff, a funeral home director and embalmer, spent copious time writing a letter to her boss, the owner, explaining she was transgender and that after six years on the job, she planned to begin coming to work as a woman, her “true self.” Her boss read the note, folded it up, placed it in his pocket and walked out. She was terminated weeks later.
Plaintiff explained she would simply be going from coming to work as a man dressed in a suit to being a woman suited in a dress.
“They couldn’t handle that part,” she told CNN Business.
Soon thereafter, she filed a complaint with the U.S. Equal Employment Opportunity Commission, and the agency then sued the funeral home director, arguing that to fire someone on the basis of his or her gender identity/expression or on grounds of gender-based expectations is a violation of federal law on gender discrimination. State laws and district courts have been divided on this point.
The 6th Circuit ruled in favor of the worker, citing Title VII of the Civil Rights Act of 1964.
Now, the funeral director is appealing to the U.S. Supreme Court, arguing that requiring him to allow his employee to wear the uniform intended for use by female funeral directors is a violation of his right not to be complicit in perpetuation of the notion that gender is a social construct as opposed to an unchangeable gift from God. A religious conservative group providing legal defense to the director argues that when the goal is to help grieving loved ones of the deceased, the non-conforming gender identity of a funeral home employee shifts the focus away from that process.
Further, he argues he’s being penalized for changes in law and federal policy that could not have been anticipated.
Transgender, Gay and Lesbian Workers Left in Lurch
In agreeing to hear this case, the SCOTUS will offer a final answer on whether gender identity and sexual orientation are covered under Title VII gender identity protections.
Under the Obama administration’s attorney general, it was recognized that transgender discrimination is a form of gender discrimination and thus protected under Title VII. However, that changed under Jeff Sessions, Trump’s former attorney general who overturned that guidance.
It is the EEOC’s current position that Title VII’s prohibition on employment discrimination on the basis of sex also bars LGBT discrimination. Gender discrimination attorneys at The Nassiri Law Group understand that these protections are supposed to apply regardless of state and local rules, but that’s only per EEOC policy.
EEOC policy is set by officials appointed by the federal administration, but there are currently several openings at the agency including for its general counsel.
The SCOTUS decision could settle the matter with some finality, allowing workers to know where they stand.
Contact the employment attorneys at Nassiri Law Group, practicing in Orange County, Riverside and Los Angeles. Call 949.375.4734.
Fired for being transgender: The fight for LGBTQ workers’ rights, June 2019, CNN