Lawyer Monthly Magazine - July 2019 Edition

www. lawyer-monthly .com 9 COVER FEATURE JUL 2019 Do members of the LGBT community have protections against discrimination in employment? Employees who are part of the LGBT+ community are generally entitled to protection from harassment in the workplace, to some degree. The extent of these protections varies depending on the jurisdiction in which a person is employed. Fortunately, The City of New York has enacted some of the most protective legislation in the country for employees that are part of the LGBT+ community. Before discussing the varying degrees of protections, it’s important to understand the meaning of the acronym LGBT+. For purposes of legal protection in the workplace, the term LGBT+ refers broadly to an individual’s sexual orientation and/or their gender identity. More specifically, lesbian, gay, and bisexual people are part of a protected class based on their sexual orientation. Transgender people are part of a separate protected class based on their gender identity. The ‘+’ at the end of the acronym refers to a broader spectrum of sexuality and gender which may include queer, questioning, intersex, pansexual, and others. There is debate over how best to recognize these different categories without excluding any particular group. This article will discuss the interaction of various legal protections and members of the LGBT+ community. suffered discrimination “on the basis of sex”. Claims of “sex discrimination” have long served as a backdoor for relief to LGBT+ people who would not otherwise have recourse in federal court. This is due to language used in Title VII which is antiquated and non- inclusive. Fortunately, the New York City Human Rights Law provides much broader protections for all employees working in the five boroughs, including an explicit recognition of sexual orientation and gender identity as protected categories. For instance, a transgender litigant does not have to claim that they are being discriminated against “on the basis of sex” to bring an action in New York State Supreme Court. Theymay claim that the discrimination is on the basis of their gender identity. Gender is defined very broadly by the New York What laws protect emp oyees that suffer discrimination on the basis of their sexual orientation or gender identity? Unfortunately,there isnofederal law which explicitly recognizes a person’s sexual orientation or their gender identity as a protected characteristic with regard to workplace harassment. However, LGBT+ litigants have successfully brought discrimination lawsuits against their private employers in federal court by making creative legal arguments that they suffered discrimination “on the basis of sex.” In the 1989 case, Price Waterhouse v. Hopkins, the Supreme Court recognized a prohibition against discrimination stemming from “gender stereotyping” under Title VII of the Civil Rights Act of 1964, the federal anti-discrimination statute. While that case did not pertain to an LGBT+ litigant, members of the community have successfully claimed gender stereotyping as a legal theory for underlying sexual orientation or gender identity discrimination. The Equal Employment Opportunity Commission (EEOC), the federal agency charged with enforcing the federal civil rights protections in the workplace, has also held that discrimination on the basis of gender identity is prohibited in employment (Macy v. Dep’t of Justice, April 2012), and that discrimination on the basis of sexual orientation is prohibited in employment (Baldwin v. Dep’t of Transportation, July 2015). In both cases the aggrieved employees only prevailed on a theory that they City Commission on Human Rights to include “Actual or perceived sex, gender identity and gender expression, including a person’s actual or perceived gender-related self-image, appearance, behavior, expression or other gender-related characteristic, regardless of the sex assigned to that person at birth.” What forms of discrimination and harassment against members of the LGBT+ community are actionable? The standard for what rises to the level of actionable harassment differs between the federal level as compared to the municipal level. Unsurprisingly, the federal court’s interpretation of Title VII imposes a high bar for claims of a hostile work environment by an employee that is suffering harassment in the workplace. A plaintiff must plead that THE NEW YORK CITY HUMAN RIGHTS LAW ON THE OTHER HAND, EMPLOYS A FAR MORE EMPLOYEE-FRIENDLY STANDARD FOR CLAIMING A HOSTILE WORK ENVIRONMENT.