HB2 does not absolve employers of LGBT discrimination liability

A survey of workplace issues and possible solutions

[Ed. Note: The issues surrounding HB2, employment, etc., are an ever-changing landscape. Please check with an attorney should the need arise.]

With all of the media attention surrounding HB2, many are under the impression that North Carolina’s “at will” employment state laws allow employers to treat LGBT workers differently. However, in many cases, LGBT employees in North Carolina are protected from discrimination under federal law.

Here’s what you should know

Any employer with 15 or more employees, including part-time and temporary workers, is subject to Title VII of the Civil Rights of Act of 1964 (Title VII). This includes all government employees (state and federal). Title VII protects job applicants, employees and former employees against all discrimination based on race, color, sex, religion and national origin. Title VII also prohibits employers from retaliating against workers who oppose discriminatory employment practices or participate in an employment discrimination proceeding.

The Equal Employment Opportunity Commission (EEOC) is the agency of the United States government that enforces federal employment discrimination laws including Title VII. The EEOC recently issued a guidance document entitled, “What You Should Know About EEOC and the Enforcement Protections for LGBT Workers,” that discusses how the agency interprets and enforces Title VII’s prohibition of sex discrimination based on gender identity or sexual orientation.

How are you protected?

The EEOC’s interpretation of Title VII renders HB2 largely moot in the workplace. Contrary state law is not a defense under Title VII.

According to the EEOC, denying an employee equal access to a common restroom corresponding to the employee’s gender identity is an example of unlawful sex discrimination.

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Requiring an employee to use a specific restroom when others are not required to do so, or having to walk a further distance than other employees to use a specific restroom is discrimination.

The EEOC guidance goes on to provide a handful of other LGBT-related sex discrimination examples including:

• Failing to hire an applicant because she is a transgender woman.

• Firing an employee because he is planning or has made a gender transition.

• Harassing an employee because of a gender transition, such as by intentionally and persistently failing to use the name and gender pronoun that correspond to the gender identity with which the employee identifies, and which the employee has communicated to management and employees.

• Failing to revise employment records to reflect changes in gender identity.

• Denying an employee a promotion because he is gay or straight.

• Providing a lower salary because of sexual orientation, or denying spousal health insurance benefits to a female employee because her legal spouse is a woman, while providing spousal health insurance to a male employee whose legal spouse is a woman.

• Harassing an employee because of his or her sexual orientation.

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• Disciplining an employee for displaying a picture of their same sex spouse.

Experiencing discrimination?

When filing a discrimination charge or lawsuit, there are strict deadlines that must be observed. An attorney can assist an employee through the EEOC process, as well as file a claim on their behalf.

Although the 7th Circuit Court of Appeals recently struck down a claim of sexual orientation discrimination under Title VII,1 the Supreme Court has been expanding the rights of LGBT persons in a constitutional context.

Given the Supreme Court’s recent ruling on the Defense of Marriage Act, whereby they ruled that same-sex couples have the right to marry in every state, the 7th Circuit noted that the Supreme Court has “created a paradoxical legal landscape in which a person can be married on Saturday and then fired on Monday for just that act.”

Until Congress or the Supreme Court moves, the EEOC continues to encourage LGBT employees to file Title VII discrimination claims based on sexual orientation and gender identity. The EEOC and private attorneys may be able to successfully negotiate settlements for claims of discrimination and harassment prior to filing a lawsuit.  An employment law attorney may also assist LGBT employees assert tort claims for intentional and/or negligent infliction of emotional distress, negligent hiring/supervision/retention, and (in appropriate cases) Americans with Disability Act and Family Medical Leave Act for claims of gender dysphoria.

You deserve a friendly workplace

An employer who treats LGBT workers any differently than non-LGBT workers in their terms, conditions, or privileges of employment could face a charge of discrimination and a potential federal lawsuit. Employers can ensure a LGBT-friendly workplace by treating all of their employees equally, regardless of their sexual orientation or gender identity. Employers should not allow employees to be discriminated against or harassed because of their sexual orientation or gender identity — period.

North Carolina employers should review their equal employment opportunity policies and practices to determine their exposure to possible discrimination and harassment claims based on an employee’s sexual orientation and gender identity. Attorneys can further assist employers and human resource departments in understanding employees’ individual rights in the workplace and the employer’s obligations and responsibilities.

1. Hively v. Ivy Tech Community College, No. 15-1720 (7th Cir., July 28, 2016).

2. Obergefell v. Hodges, 135 S. Ct. 2584 (2015)

— Kerry Everett, an attorney specializing  in employment law at Sodoma Law, P.C. in Charlotte, N.C.

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