Is Sexual Orientation Including Gender Identity the Next Universally Protected Class in Employment Law?

by Spilman Thomas & Battle, PLLC

On July 21, 2014, President Obama signed an executive order expanding protection of employees of the federal government provided by Executive Orders 11478 and 11246. Specifically, individuals in federal employment cannot be discriminated against in their employment based on their sexual orientation and/or gender identity. Previously, federal law only banned employment discrimination against federal employees based on the employees’ sexual orientation. Sexual orientation refers to an individual’s attraction to a specific gender, e.g. homosexual, heterosexual, bi-sexual. The new executive order expands protections to include gender identity, which refers to an individual’s identification as a man, woman or another gender which may or may not correspond to the individual’s sex at birth. In addition to federal employees, the executive order also bans discrimination based on sexual orientation and/or gender identity against employees of companies that receive federal contracts. At this point whether the size of the federal contract is relevant to the application of the executive order is not known; however, the Department of Labor is tasked with promulgating rules to effectuate the order.

To avoid discrimination based on gender identity, employers must have an understanding of specific considerations relating to transgender employees. For example, some transgender employees may choose to undergo a gender transition during employment. The gender transition can result in questions on how to appropriately address situations such as the following: gender pronouns, confidentiality, the dress of the employee, restroom facilities, and insurance registration and benefits. It is key for the employer to prevent negative reactions from other employees by proactively providing mandatory training on transgender issues. This training should include the employer’s policy on restrooms and a transitioning employee’s dress, which should embrace the employee’s gender to which he or she is transitioning.

While President Obama’s executive order only applies to individuals in federal employment as well as employees of companies that receive federal contracts, similar laws and legislation exist throughout the United States. Within the Spilman footprint, the following cities and counties have non-discrimination ordinances preventing discrimination in employment based on an individual’s gender identity (as well as sexual orientation):

Abington Township, Allegheny County, City of Allentown, city of Bethlehem, Cheltenham Township, City of Doylestown, City of East Norriton, City of Easton, Eric County, City of Harrisburg, City of Hatboro, Haverford Township, Jenkinstown Borough, Lansdown Borough, Lower Marion Township, New Hope Borough, Newton Borough, City of Philadelphia, City of Pittston, City of Scranton, Springfield Township, State College Borough, Susquehanna Township, City of Swarthmore, Upper Merion Township, West Chester Borough, Whitemarsh Township, City of York

West Virginia:
City of Morgantown, City of Charleston

In addition to these laws, there is currently active legislation within the Spilman footprint addressing discrimination in employment based on sexual orientation and gender identity. For example, active in North Carolina is the Nondiscrimination in State Employment Bill (House Bill 429/Senate Bill 544), which seeks to ban discrimination against state employees on the basis of sexual orientation and gender identity. In Pennsylvania, an Act amending the Pennsylvania Human Relations Act seeks to ban discrimination in housing and public accommodation on the basis of sexual orientation as well as gender identity or expression.

Similarly, several bills relating to discrimination in employment on the basis of sexual orientation and/or gender identity died in 2013. For example, the West Virginia House Bill 2866/Senate Bill 486, which would have prohibited discrimination on the basis of sexual orientation, defined to include gender identity, in employment, housing and public accommodations, died upon adjournment in April 2013. Similarly, in Virginia, Senate Bill 701, which would have added sexual orientation, defined to include gender identity, to the state public employment non-discrimination law, died in a House Subcommittee in February of 2013.

The common theme throughout the United States is the introduction of legislation to protect employees based on their sexual orientation and/or gender identity.

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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