On May 9, 2012, President Barack Obama became the first sitting U.S. President to affirm his belief that same-sex couples should be able to get married. Weeks later, the First Circuit Court of Appeals declared a portion of the Defense of Marriage Act (“DOMA”) unconstitutional.¹ These announcements are just two of many events that have shaped the current landscape in this country with respect to the rights of lesbian, gay, bisexual, and transgender (“LGBT”) Americans.

As LGBT issues are being placed at the forefront of American politics, employers would do well to pay attention, as these changes may necessitate changing employment policies, educating staff, and potentially defending against employment lawsuits for previously unchartered claims, including discrimination based upon sexual orientation and gender identity or expression.

On June 12, the U.S. Senate Health, Education, Labor and Pension Committee (“HELP Committee”) is set to consider the Employment Non-Discrimination Act (“ENDA”). ENDA seeks to expand the protections of Title VII to cover sexual orientation and gender identity and will prohibit discrimination in hiring and employment by nonreligious employers with at least 15 employees.

ENDA will be a federal mandate proscribing any discrimination based on sexual orientation or gender identity by both public and private employers—thereby bringing employees living in states without such protections like Ohio,² Kentucky,³ Pennsylvania,⁴ and West Virginia,⁵ under the umbrella of federal protection.

The Sixth Circuit Court of Appeals has found that Title VII protects transgender employees—holding that discriminating against employees who do not identify with their gender, act like members in their gender, or conform with sexual stereotypes is a form of sex discrimination violates Title VII. Barnes v. City of Cincinnati, 401 F.3d 729 (6th Cir. 2005); Smith v. City of Salem, 378 F.3d 566 (6th Cir. 2004).

Further underscoring the shifting landscape of LGBT rights was the Equal Employment Opportunity Commission’s (“EEOC”) recent ruling in Macy v. Holder, expanding the prohibition against sex discrimination of Title VII to cover transgender workers.

In Macy v. Holder, the EEOC held that Mia Macy’s complaint of discrimination based on gender identity, change of sex, and/or transgender status can be brought under Title VII. Macy, a former police detective in Phoenix, Arizona, relocated to San Francisco and applied for an open position at the Bureau of Alcohol, Tobacco, Firearms and Explosives (“Agency”) for which she was qualified. Macy originally applied for the position as a man and interviewed with the Director as a man. Macy asserted that the Director told her on two separate occasions that she would have the position pending completion of a background check. A few months after her original application, Macy informed the Agency that she was beginning the process of transitioning from male to female. After the Agency received notice of Macy’s change of name and gender, the agency contacted Macy and told her the position was no longer available due to lack of funding. Macy later discovered that the Agency filled this position with another person.

The EEOC found that charges of discrimination based on transgender status or gender identity are cognizable under Title VII’s sex discrimination prohibition and any such claims must be processed by the EEOC.

That Title VII’s prohibition on sex discrimination proscribes gender discrimination, and not just discrimination based on biological sex, is important. If Title VII proscribed only discrimination on the basis of biological sex, the only prohibited gender-based disparate treatment would be when an employer prefers a man over a woman, or vice versa. But the statute’s protections sweep far broader than that, in part because “gender” encompasses not only a person’s biological sex but also the cultural and social aspects associated with masculinity and femininity.

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[G]ender discrimination occurs any time an employer treats an employee differently for failing to conform to any gender-based expectations or norms.

The growing trend in the United States reveals that employment law is changing and adapting to provide a more inclusive environment for LGBT employees. Even though your state or federal circuit court may not recognize certain protections for LGBT individuals, many cities and counties around the country do have such protections in their local ordinances. As employers are navigating these issues in hiring, promoting, and firing, they should be cognizant of the local, state, and federal laws that may be at play. Employers must take the time to recognize and understand these changes, and consider revising their employee manuals and employment policies to comply with these changes.

(1) Massachusetts v. U.S. Dep’t of HHS, et al., Case Nos. 10-2204, 10-2207, & 10-2214, 2012 U.S. App. LEXIS 10950, (1st Cir. May 31, 2012) (affirming the lower court’s holding finding Section 3 of DOMA which defines marriage for federal purposes as a union between a man and a women, to be an unconstitutional encroachment on the power to define marriage granted to the states by the Tenth Amendment). 
(2) Ohio prohibits discrimination by public employers based on sexual orientation. 
(3) Kentucky prohibits discrimination by public employers based on sexual orientation and gender identity. 
(4) Pennsylvania prohibits discrimination by public employers based on sexual orientation and gender identity. 
(5) West Virginia provides no protections for LGBT employees.