By Jonathan K. Driggs, Attorney at Law
You would have to have been hiding under a rock lately to not be aware that the legal landscape has changed dramatically regarding rights for Lesbian, Gay, Bisexual and Transgendered (LGBT) individuals. It’s probably a good time to review the state of such rights as they apply to the workplace.
Same-Sex Marriage Recognized in Utah—In early October of this year, the U.S. Supreme Court declined to hear appeals from several states (including Utah) regarding decisions by lower courts that recognized same sex marriages. The result is that same sex marriages are now recognized in the state of Utah. In the latest development just last week, the 6th Circuit Court of Appeals upheld bans on same sex marriage in four other states. With the 6th Circuit being the first circuit court to uphold such a ban, it appears that the Supreme Court may now need to weigh in and settle the conflict. Nevertheless, same sex marriage is currently the law of the land in Utah and many other states until the Supreme Court rules otherwise—and with thirty states now recognizing same sex marriage, a reversal seems unlikely.
So, what should employers do? The main issue is that any benefits that employers provide to heterosexual married couples should be extended upon equal terms to same sex married couples. For example, employers should contact their health insurance brokers regarding extending health insurance coverage to same sex spouses. FMLA-related leave rights are now available to same sex couples and families.
Sexual Orientation and Gender Identity as Protected Classes Under Employment Discrimination Laws: This matter is most easily reviewed by examining the law at the federal, state and local levels.
Federal Law: Currently, the United States does not have a law that specifically makes sexual orientation and gender identity protected classes under federal employment-related anti-discrimination laws (a bill to do so has been before Congress for years, but has not been passed). However, two important developments have occurred that either give—or propose to give—some degree of protection to LGBT workers:
1) The U.S. Supreme Court has ruled that harassing an individual (let’s say a male employee) because he does not conform with sex-based stereotypes (he is effeminate), amounts to sex-based harassment under Title VII of the Civil Rights Act of 1964—thus, employees who are harassed because they don’t conform to sex-based stereotypes could have a cause of action under the law (e.g., an effeminate male, a masculine woman); and
2) The U.S. EEOC recently filed suit in federal court alleging that gender identity discrimination is a form of sex discrimination under Title VII of the Civil Rights Act of 1964—while we will need to wait for a decision on this case, it clearly shows that the main federal enforcement agency wants to protect transgendered individuals via existing statutes.
State Law: Utah does not currently have an employment-related anti-discrimination statute protecting LGBT individuals. Bills proposing to do so are routinely submitted during each legislative session without success. I am sure another bill will be submitted during the next legislative session in January 2015, but it is difficult to know what will happen this time around.
Local Law: Nineteen counties and cities in Utah have passed local ordinances prohibiting discrimination in employment and housing against LGBT individuals. To see what counties and cities are included, click on: http://www.equalityutah.org/nondiscrimination. These ordinances are slightly more than symbolic in nature (the penalties imposed for non-compliance are not substantial). Nor do they address the issue of workplace accommodations regarding transgendered employees, which is a challenging issue awaiting future resolution (see comment below).
In summary, a few observations:
This article should not be construed as legal advice. Copyright ©2014 by Jonathan K. Driggs, Attorney at Law, P.C. All rights reserved. Jonathan K. Driggs is an employment law attorney with over 21 years of experience, including 3 years with the Utah Labor Commission. www.jkdlawpc.com
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