LGBT Rights

LGBT Rights in the Workplace at Risk

By Thomas McKinney

LGBT RightsPeople of LGBT identities face pervasive discrimination all over the country and the world, but not all states in the US have protections in place to lessen the impact of this bigotry in the workplace. Thus, it is essential that federal law stays in place to those in the LGBT community from discrimination.

The reason that LGBT people should be protected from discrimination in the workplace is simple: Title VII prohibits discrimination on the basis of sex, which is exactly what discrimination against LGBT people is, and that is how it has been interpreted by the courts and by the Equal Employment Opportunity Commission—the agency which enforces Title VII.

However, these protections, which the federal government provides against LGBT discrimination, are now in danger of being stripped. The Supreme Court has taken on three pivotal cases of LGBT discrimination. If they rule in favor of the Department of Justice, which argues that it was permissible by law for the employers to terminate their employees for their LGBT identities, then many other federal protections would come into question.

Furthermore, those 4.1 million LGBT individuals in states that don’t have state laws protecting them from discrimination would have nowhere to turn if they were, for example, to be fired for being LGBT. Twenty-eight states lack any law that would protect LGBT people not only in employment, but housing and public accommodation. Two additional states only have partial statues protecting some LGBT people in some realms.

Why Protecting LGBT Rights in Essential

The moral reasoning behind the fight for LGBT equality in the workplace is clear. LGBT people suffer, not only physically but also economically, from the discrimination they face, statistics show:

  • 9% of LGBT people are unemployed, while 5% of non-LGBT are
  • 25% of LGBT people have incomes lower than $24,000, while 18% of non-LGBT do

When an employer forces a transgender woman to come to work dressed as a man instead of her true gender, that employer is discriminating against her on the basis of sex. The employer would allow a cisgender woman to dress as the gender she identifies as, but discriminates against the transgender woman for having been assigned male at birth. This case shows exactly how transgender discrimination fits well under the umbrella of sex discrimination.

That is a description of the case of Aimee Stephens, who was a valued employee at the funeral home she worked at until she was abruptly fired upon coming out to her boss for being transgender. Her case is before the Supreme Court, one of the pivotal cases that could either solidify protections for the transgender community or put a gaping hole in them.

Say a woman is fired for being in a relationship with another woman, because the employer believes it to be immoral—a man would not face the same penalty for the same action. The woman is being discriminated against on the basis of her sex.

This was exactly the case in Hively v. Ivy Tech Community College, where Kimberly Hively said she was fired for being a lesbian. “The full Seventh Circuit Court of Appeals ruled that workplace discrimination based on sexual orientation violates federal civil rights law,” according to Lambda Legal, the organization that argued the case.

This case shows how in the past that the courts have agreed with the interpretation of the EEOC that LGBT people are protected by Title VII.

About the Author
Tom McKinney is an experienced NJ Employment Lawyer in all major areas of labor and employment law, including discrimination, harassment, overtime violations, wage and hour claims, sexual harassment, wrongful discharge, Title VII, ADA, ADEA, FMLA, LAD, FLSA, and all other employment law claims. Tom is admitted to practice in the States of New Jersey and New York, United States District Court for the Eastern District of New York, Southern District of New York, District of New Jersey, and United States Court of Appeals for the Third Circuit. Prior to forming the firm, Tom practiced at Gibbons P.C. in Newark, NJ. If you have any questions regarding this article, contact Tom here today.