May_June 2016 Chamber Magazine

HR Matters
The Emerging Frontier: The protection
of LGBT employees in the workplace
By: Randy C. Sparks, Jr.,
Kaufman & Canoles, P.C.
North Carolina recently set off a fire
storm with the passage of a law that
bans individuals from using public
facilities that do not correspond to their
biological sex and prohibits localities, like
the City of Charlotte, from implementing
local non-discrimination laws. Viewed
Randy C. Sparks, Jr.
by many as anti-LGBT legislation, many
businesses have denounced the law; PayPal even announced
the cancellation of plans to build a global operations center
in Charlotte. On the other side, however, Mississippi enacted
a similar law that allows churches, religious charities, and
privately owned businesses to decline to provide services to
people if doing so would violate religious beliefs, and Georgia
toyed with a similar law until receiving pressure from the
entertainment industry and the NFL. One thing is clear – the
issue of Lesbian, Gay, Bisexual, Transgender (LGBT) rights is
a very emotional issue, engendering strong feelings on both
sides.
This is nothing new for employers; they deal with strong
emotional issues on a daily basis. But, employers still struggle
with their legal obligations to LGBT employees. And, for
good reason – the law in this area is less than clear and
frequently changes with governmental proclamations and
court decisions. For example, in one of his first acts, Governor
McAuliffe issued an executive order prohibiting discrimination
on the basis of sexual orientation and gender identity by the
state government; however, the Virginia Human Rights Act
applicable to private employers in Virginia contains no such
prohibition. Despite the uncertainty, the past few years have
brought us the following guidelines for employers:
Make sure your benefits and policies are updated
to include same-sex spouses. Last summer, the U.S.
Supreme Court ruled that states must issue marriage
licenses for and recognize same-sex marriages. As a result,
any benefit plans covered by ERISA (i.e., the federal law
regulating employee benefits, such as retirement plans
and group health insurance) must provide for benefits for
same-sex spouses. And, employee leave laws, such as the
Family and Medical Leave Act, require employers to provide
leave for covered situations involving same-sex spouses.
Which bathroom should transgender employees
use? At first glance, this seems to be a simple issue;
however, over the past few years, the question of which
bathroom an employee must use is cropping up with
greater frequency. So much so, that it actually went up to
a federal appellate court for decision. The Fourth Circuit
(which has jurisdiction over Virginia) recently decided that
federal law requires public schools to allow transgender
students to use the restroom that corresponds to his/her
gender identity, rather than his/her biological sex. OSHA,
EEOC, and OFCCP – all federal agencies having some
oversight of the employment relationship – have all taken
similar stances, issuing guidelines advising that employees
should be allowed to use the restroom that matches their
gender identity. EEOC and OFCCP have even stated their
view that prohibiting an employee from using the restroom
corresponding to his/her gender identity constitutes
unlawful discrimination.
Federal employment discrimination laws are being
expanded to cover sexual orientation and gender
identity discrimination. No federal law expressly
prohibits discrimination based on “sexual orientation”
or “gender identity.” However, Title VII (which applies
to companies with 15 or more employees) prohibits
discrimination because of “sex.” The federal government
takes the position that the term “sex” encompasses
gender identity and sexual orientation. In fact, the EEOC’s
Strategic Enforcement Plan identifies the coverage of
LGBT employees under Title VII’s prohibitions as one of
its present enforcement priorities and has filed litigation
alleging transgender discrimination on behalf of at least
three individuals. And, earlier this year, the EEOC filed its
first two cases alleging sexual orientation discrimination.
Federal government contractors cannot discriminate
against employees and applicants on the basis of
sexual orientation and/or gender identity. In July
2014, President Obama issued Executive Order 13672,
prohibiting government contractors from discriminating
MAY/JUNE 2016 Fredericksburg Regional Business 11