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It depends on whom you pose the question. Many states certainly prohibit discrimination against LGBT individuals, but historically federal anti-discrimination laws were not interpreted as prohibiting employers from taking adverse actions with regard to the hiring, promoting, disciplining, compensating or firing of employees. To remedy this, various members of Congress have been seeking passage of the Employment Non-Discrimination Act (ENDA) for more than 20 years. ENDA would add lesbian, gay, bi-sexual and transgender persons to the list of protected status in the employment context, effectively protecting the LGBT workers from workplace discrimination and harassment.

Enter the EEOC. While ENDA enters decade three of its languishment in Congress, the EEOC in December of 2012 determined that the prohibition against sex discrimination and harassment under Title VII may similarly cover LGBT workers. Around this same time the EEOC found that transgender workers were covered by sex discrimination prohibitions. Subsequent to its new interpretation of the law, in 2014 the EEOC has sued two employers – one in Michigan and the other in Florida – both purportedly discriminating against transgender employees. The Florida employer has since settled the lawsuit for $150,000.

Last week on July 15, 2015, the EEOC extended its interpretation of Title VII to now include sexual orientation. Lawsuits against employers for discriminating and/or harassing workers because of their sexual orientation are likely to ensue.

The legal basis for the EEOC’s new interpretation of Title VII is precarious and has yet to be justified through the courts. What is not precarious, however, is the agency’s interpretation of this law, its policy and its willingness to pursue employers aggressively for what it believes to be a violation of Title VII.

Thompson Coe and myHRgenius Tip of the Week is not intended as a solicitation, does not constitute legal advice, and does not establish an attorney-client relationship.


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Kevin M. Mosher

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