Depending on your location and number of employees, it may be illegal for you to discriminate against homosexual and transgender job applicants and employees. This group has long been discriminated against, and federal legal protections are a recent development according to a corporate disputes lawyer.
Do You Want To Discriminate Against A Sizable Part Of The Workforce?
A recent Gallup poll of 12,000 Americans aged 18 and older showed that 7.6% reported that they considered themselves as homosexual, bisexual, or transgender, reports NPR. That’s up from 3.5% in 2012.
The US Census estimates there are 258 million Americans in that age group, so if this figure is accurate, that means about 19.6 million Americans identify themselves as homosexual, bisexual, or transgender. That’s slightly more than New York state’s population, the nation’s fourth most populous state, and about two million short of the number of Americans of Asian ancestry.
Local And State Laws Prohibit LBGTQ Employment Discrimination
The District of Columbia and 23 states have laws prohibiting employment discrimination against job applicants and employees due to their sexual orientation and gender identity, according to the Human Rights Campaign. One state bans it just based on sexual orientation.
Six other states have similar laws that only cover public employees, and twelve states have no legal protections. Some municipalities, cities, and counties have ordinances or laws banning sexual orientation and gender identity employment discrimination.
US Supreme Court Interprets Federal Anti-Discrimination Law As Covering Sexual Orientation And Gender Identity
Title VII of the Civil Rights Act of 1964 is the primary federal anti-employment discrimination law. It applies to employers with 15 or more employees and protects employees based on their color, race, sex, religion, or national origin. It prohibits unequal treatment of job applicants and employees in their hiring, firing, pay, discipline, terms and conditions of employment.
Title VII’s protections against sex discrimination, according to a 1989 US Supreme Court decision, go beyond a person’s physical, and sexual anatomy. Workers can also be illegally discriminated against because they don’t show stereotypical, outward traits associated with their sex.
The Price Waterhouse v. Hopkins case involved a woman who was rejected as a partner in an accounting firm despite her excellent work and ability to recruit large clients. Her criticism included that she could be brusque, abrasive, and aggressive and that she swore. One partner told her she’d have a better chance at a promotion if she would “walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry.”
According to our friends at Focus Law LA, the court ruled that if an employer made employment decisions because someone didn’t appear to be a stereotypical member of their sex (too masculine for a female, too feminine for a male), it could be the basis for a discrimination lawsuit because employment choices were based on a worker’s sex. That ruling started a line of cases concerning people discriminated against because they didn’t conform with traditional sexual appearances, approaches, and practices.
That line of cases reached its logical conclusion in 2020 with the Bostock v. Clayton County decision. It decided that Title VII’s prohibition against discrimination on account of someone’s sex included their sexual orientation because sexual attraction to someone of the same sex is the ultimate sex stereotype taboo. If you wouldn’t hire a female if she’s attracted to other females but would hire a male attracted to females, you are discriminating against her due to her sex.
Contact your attorney if you have questions about employment discrimination law or need help with an employment law matter.
