The Employment Non-Discrimination Act (“ENDA”) passed the United States Senate on November 7, 2013, but is expected to languish and fail in the House.1
However, even if ENDA fails, this does not mean that employers need not worry about discrimination against lesbian, gay, bisexual, or transgender (“LGBT”) employees. While ENDA is designed to codify protections for LGBT employees and expand their substantive rights, employers need to be mindful that a myriad of obligations already exist under federal, state, and local law.
Mirrored after Title VII of the Civil Rights Act of 1964 (“Title VII”), ENDA is a remedial statute that would prohibit discrimination in hiring and employment. The Senate’s version expands protections to applicants and employees against discrimination on the basis of sexual orientation or gender identity. It prohibits employers from subjecting applicants and employees to different standards or treatment based on the individual’s actual or perceived sexual orientation or gender identity (or the gender identity or sexual orientation of those with whom the individual associates). Similar to charges of discrimination filed under Title VII, the Equal Employment Opportunity Commission (“EEOC” or the “Commission”) would investigate charges of discrimination.
ENDA would apply to public and private employers and labor unions with at least 15 employees and will apply only prospectively. The proposed legislation provides for a religious exemption similar to the religious entity exemption provided under Title VII. Unlike Title VII, ENDA will not allow claimants to pursue claims based on disparate impact theory, therefore, employers will not have to justify any facially neutral policies or practices that may have a statistically disparate impact on sexual orientation or gender identity.
Currently, Title VII has been used to advance claims based on gender stereotyping. Title VII prohibits discrimination based on sex, and many courts are allowing claims to go forward by LGBT plaintiffs claiming discrimination based on gender stereotyping. “Gender stereotyping” first became actionable after the United States Supreme Court rendered a decision in Price Waterhouse v. Hopkins
when it found that Price Waterhouse violated Title VII by engaging in sex stereotypes when it did not advance Ann Hopkins to partner for a “lack of interpersonal skills.” Partners described Ms. Hopkins as “macho” and in need of “a course at charm school,” complained of Hopkins’ use of profanity “because it’s a lady using foul language,” and one supervisor advised her that her chances for partnership would improve if she could “walk more femininely, talk more femininely, wear make-up, have her hair styled, and wear jewelry.”
The Sixth Circuit Court of Appeals has found that Title VII will protect transgender employees, holding that discriminating against employees who do not identify with their gender, act like members in their gender, or conform with sexual stereotypes is a form of sex discrimination that violates Title VII.3
A recent case from Virginia further underscores that even without ENDA, Title VII can be used by LGBT employees for claims of discrimination. In Henderson v. Labor Finders of Virginia, Inc.
the plaintiff defeated an employer’s motion to dismiss when he brought a Title VII claim of sex discrimination and a hostile work environment because the employer engaged in sexual stereotyping. Plaintiff was constantly subjected to verbal homophobic epithets by other employees or supervisors. He was told he looked like a woman and that he did not meet the company standards of a man. Plaintiff wrote several complaints to management, but received no response. The court stated:
Of course, it is often difficult to draw the distinction between discrimination on the basis of gender stereotyping and discrimination on the basis of sexual orientation. After all, sex stereotyping is central to all discrimination: Discrimination involves generalizing from the characteristics of a group to those of an individual, making assumptions about an individual because of that person's gender, assumptions that may or may not be true. Stereotypical notions about how men and women should behave will often necessarily blur into ideas about heterosexuality and homosexuality. A homosexual male exhibiting an attraction toward other males in the workplace would not be behaving as a man would stereotypically be expected to behave. The distinction is further complicated by a trend of advice encouraging homosexual plaintiffs who are discriminated against based on their sexual orientation to bring Title VII claims under a gender-stereotyping theory.5
The EEOC has also permitted such charges of gender/sex stereotyping to go forward. In Veretto v. U.S. Postal Service6 and Castello v. U.S. Postal Service,7 the Commission found that claims by LGBT individuals alleging sex-stereotyping were able to state a claim of sex discrimination under Title VII. In Veretto, the complainant’s charge was allowed to move forward based on an allegation that the employer created a hostile work environment against him when his manager learned he was marrying a man. The complainant alleged that the supervisor was motivated by the sexual stereotype that marrying a woman is an essential part of being a man and became enraged when complainant did not adhere to this stereotype. In Castello, the complainant’s charge focused on the derogatory comments she suffered about her having relationships with women. The EEOC found that the supervisor’s comments were motivated by his attitude about stereotypical gender roles in relationships, i.e. that “having relationships with men is an essential part of being a woman.” More recently, in Macy v. Dep’t of Justice,8 the EEOC found that charges of discrimination based on transgender status or gender identity are cognizable under Title VII’s sex discrimination prohibitions.9
An immediate question that arose after the Defense of Marriage Act (“DOMA”) was overturned by the US Supreme Court this summer was how the ruling would impact immigration in the United States.10 Section 3 of DOMA, which defined marriage as a union between one man and one woman, previously prevented same-sex couples from seeking many federal benefits, including immigration benefits. Since Windsor, the U.S. Department of Homeland Security and the U.S. Department of State have directed their field offices to review all applications filed by same-sex couples in the same manner as those filed by opposite-sex couples in connection with both nonimmigrant and immigrant visas. Additionally, many cases previously denied solely on the basis of DOMA were reopened at the U.S. Department of Homeland Security’s direction for re-adjudication.
Following Windsor, the Board of Immigration Appeals decided Matter of Zeleniak,11 which confirmed that the U.S. government will look at the validity of the marriage based on the state where the couple got married, not the state where the couple currently resides. Thus, same-sex couples who reside in a state or country that does not permit same-sex marriage may still seek immigration benefits for their qualifying relatives provided they have a legal marriage obtained in a state or foreign country that permits same-sex marriage. However, at this time, the U.S. government does not extend immigration benefits to same-sex domestic partnerships or civil unions.
For companies that sponsor foreign nationals for temporary and/or permanent employment in the United States, the Windsor immigration impact is particularly important. Employees are now entitled to apply for derivative immigration status for same-sex spouses who were previously prevented from accompanying their family to the United States during employment. Employers should ensure that any corporate immigration policies that permit dependent visa filings, apply equally to opposite and same-sex families alike.
While states differ on their recognized protection for LGBT individuals, the federal landscape is expanding to provide a more inclusive environment in the workplace, through its immigration policies, and with federal benefits and protections.
Although ENDA’s passage may not be immediate, employers are not insulated from liability for gender- or sex-stereotyping or differential treatment of LGBT employees or applicants. Currently, 21 states and the District of Columbia, along with a plethora of cities, expressly prohibit discrimination based on sexual orientation or gender identity.12 This means that even without a federal mandate, many states and cities prohibit discrimination in employment for LGBT employees. Further, many employers have gone above any legal requirements to include protections for LGBT employees within their own policies and procedures.
As employers are navigating these issues in recruiting, hiring, promoting, firing, benefits, and payroll, they need to be aware of these landmark decisions at the federal level. Employers must take the time to recognize and understand these changes and consider revising their employee manuals and employment policies to comply with these changes and train their managers to comply with the applicable laws.
(2) 490 U.S. 228 (1989).
(3) Barnes v. City of Cincinnati, 401 F.3d 729 (6th Cir. 2005); Smith v. City of Salem, 378 F.3d 566 (6th Cir. 2004).
(4) E.D. Va. No. 3:12cv600, 2013 U.S. Dist. LEXIS 47753 (April 2, 2013).
(5) (internal citations omitted) Id. at *14-17.
(6) EEOC Appeal No. 0120110873 (July 1, 2011).
(7) EEOC Requst No. 0520110649 (Dec. 20, 2011).
(8) EEOC Appeal No. 0120120821 (April 20, 2012).
(9) For additional discussion of the Macy decision, see http://www.dinsmore.com/white_house_endorsement_affects_employment_law/.
(10) On June 26, 2013, the U.S. Supreme Court issued a landmark decision in the United States v. Windsor, 570 U.S. ___ (2013), holding that Section 3 of DOMA was unconstitutional as a deprivation of equal liberty protected by the Fifth Amendment.
(11) 26 I&N Dec. at 159.