Mixed Messages on LGBT Protections

by LeClairRyan
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NYC Guidelines Strengthen Transgender Protections in Employment; NC Law Eliminates Local LGBT Protections Altogether.  Confused, Anyone?

I don’t envy employers these days. It ain’t easy staying on top of all of the federal, state, and local employment laws and regulations out there at the moment. And if you’re an employer with employees in multiple states across our great country, forget about it. (On second thought, don’t forget about it, just delegate figuring that mess out to your favorite employment lawyer.)

Case-in-point, the many and varied laws out there regarding the protections afforded LGBT employees.

In late December last year, the New York City Commission on Human Rights issued broad-based guidelines that attempt to clearly define what constitutes gender identity and gender expression discrimination in the workplace. The new guidelines reinforce that, at least in the Big Apple, it is unlawful to fire, refuse to hire or promote, or set different terms and conditions of employment because of an employee’s gender, including an employee’s status as a transgender person. The guidelines also provide explicit examples of actions considered discriminatory and offer best practices for employers to follow in order to avoid liability for discrimination based on gender identity or expression. In particular, NYC employers will find themselves on the wrong side of the law if they:

  • fail to use a person’s preferred name, pronoun, or title;
  • refuse to allow employees access to single-sex facilities consistent with their gender identity (hint: it’s probably not the gender on their birth certificate);
  • impose uniforms or grooming standards based on sex or gender;
  • provide employee benefits that discriminate based on gender; or
  • fail to consider gender when evaluating requests for accommodation.

At the time the guidelines were issued, one might have thought it was a sign of things to come as far as LGBT-related rights and protections are concerned.

***

Now, let’s take a little spring break road trip down I-95 to North Carolina.

On March 21, 2016, the North Carolina state legislature called a special session in response to a Charlotte, North Carolina public accommodation ordinance that prohibited discrimination by businesses against LGBT residents and would have allowed transgender residents to use the public restroom of the gender with which they identify. The ordinance was set to go into effect April 1st.

Two days later, on March 23, 2016, the North Carolina Legislature wrote and passed a bill that prevents local governments (here’s looking at you, Charlotte) from enacting laws prohibiting discrimination in employment and public accommodations. The governor signed the bill into law the same day.

(Cue the protests.)  The backlash has come from civil rights activists and employers alike, and includes a lawsuit against the Governor of North Carolina, among others. Last Friday, the Mississippi state legislature passed The Protecting Freedom of Conscience from Government Discrimination Act, which is awaiting the Governor’s approval. This bill, if signed into law, essentially would allow employers to determine what rules apply to LGBT employees in their own workplaces, based on their own “sincerely held religious belief or moral conviction.” We have not heard the last on this issue.

***

Perhaps most importantly, we cannot forget about the EEOC’s position on sexual orientation discrimination, as explained in a post by my colleague Charlie Meyer last week. (The CliffsNotes version? The EEOC does not approve of sexual orientation discrimination in the workplace.)

What are Employers to Do with This Seemingly Mixed Message?
Notwithstanding the recent enactment of the North Carolina anti-local, anti-discrimination law, and the pending Mississippi law, employers should assume that additional protections for LGBT employees is the wave of the future and act accordingly.

But don’t get Stressed Out. To stay ahead of the trend, employers should review their policies, procedures and practices – from updating handbooks and staff training, to considering amending the signs on their bathroom doors. Even if the New York City regulations don’t apply to your workforce, the EEOC’s increased enforcement on sexual orientation and gender identity protections indicate a changing tide for employers nationwide. The NYC guidelines therefore aren’t a bad resource for employers across the country who want to stay a step ahead of future regulations and a mile away from EEOC enforcement actions.

And, as always, employers should contact their attorneys to help them navigate particularly tricky new issues in the workplace.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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