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Sexual Orientation Discrimination

Sexual Orientation Discrimination in Florida

The Equal Employment Opportunity Commission (EEOC) interprets and enforces Title VII’s prohibition of sex discrimination as forbidding any employment discrimination based on gender identity or sexual orientation.  These protections apply regardless of any contrary state or local laws.

Through investigation, conciliation, and litigation of charges by individuals against private sector employers, as well as hearings and appeals for federal sector workers, the Commission has taken the position that existing sex discrimination provisions in Title VII protect lesbian, gay, bisexual, and transgender (LGBT) applicants and employees against employment bias.  The Commission has obtained approximately $6.4 million in monetary relief for individuals, as well as numerous employer policy changes, in voluntary resolutions of LGBT discrimination charges under Title VII since data collection began in 2013.  A growing number of court decisions have endorsed the Commission’s interpretation of Title VII.

Examples of LGBT-Related Sex Discrimination Claims

Some examples of LGBT-related claims that EEOC views as unlawful sex discrimination include:
§ Failing to hire an applicant because she is a transgender woman.
§ Firing an employee because he is planning or has made a gender transition.
§ Denying an employee equal access to a common restroom corresponding to the employee’s gender identity.
§ 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.
§ Denying an employee a promotion because he is gay or straight.
§ Discriminating in terms, conditions, or privileges of employment, such as providing a lower salary to an employee 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, for example, by derogatory terms, sexually oriented comments, or disparaging remarks for associating with a person of the same or opposite sex.
§ Discriminating against or harassing an employee because of his or her sexual orientation or gender identity, in combination with another unlawful reason, for example, on the basis of transgender status and race, or sexual orientation and disability.

Applicable Federal Law

The EEOC is responsible for enforcing federal laws that make it illegal to discriminate in employment against a job applicant, employee, or former employee because of the person’s race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information.  These federal laws also prohibit employers from retaliating against workers who oppose discriminatory employment practices – for example, by reporting incidents of sexual harassment to their supervisor or human resources department – or against those who participate in an employment discrimination proceeding – for example by filing an EEOC charge, cooperating with an EEOC investigation, or participating in an employment discrimination lawsuit.

While Title VII of the Civil Rights Act of 1964 does not explicitly include sexual orientation or gender identity in its list of protected bases, the Commission, consistent with Supreme Court case law holding that employment actions motivated by gender stereotyping are unlawful sex discrimination and other court decisions, interprets the statute’s sex discrimination provision as prohibiting discrimination against employees on the basis of sexual orientation and gender identity.

Over the past several years the Commission has set forth its position in several published decisions involving federal employment.  These decisions explain the legal basis for concluding that LGBT-related discrimination constitutes sex discrimination under Title VII, and give examples of what would be considered unlawful. In so ruling, the Commission has not recognized any new protected characteristics under Title VII.  Rather, it has applied existing Title VII precedents to sex discrimination claims raised by LGBT individuals.  The Commission has reiterated these positions through recent amicus curiae briefs and litigation against private companies.

Conciliation and Litigation

When the Commission finds reasonable cause to believe that discrimination has occurred, it seeks to resolve the matter voluntarily through informal means of conciliation, conference, and persuasion.  If the Commission is unable to secure a voluntary resolution, it has authority to file suit in federal court.  In several cases, the Commission has filed LGBT-related lawsuits under Title VII challenging alleged sex discrimination.  Read about examples of pending and resolved EEOC litigation involving Title VII sex discrimination claims brought on behalf of LGBT individuals, as well as EEOC amicus briefs filed in suits brought by private individuals raising these issues.

Resources

§ Fact Sheet on Recent EEOC Litigation Regarding Title VII & LGBT-Related Discrimination, www.eeoc.gov/eeoc/litigation/selected/lgbt_facts.cfm
§ Examples of Court Decisions Supporting Coverage of LGBT-Related Discrimination Under Title VII, www.eeoc.gov/eeoc/newsroom/wysk/lgbt_examples_decisions.cfm
§ Federal Sector Cases Involving LGBT Individuals, www.eeoc.gov/federal/reports/lgbt_cases.cfm
§ Brochure on Preventing Employment Discrimination Against Lesbian, Gay, Bisexual, or Transgender Employees, http://www.eeoc.gov/eeoc/publications/brochure-gender_stereotyping.cfm.
§ OPM-EEOC-OSC-MSPB Guide: Addressing Sexual Orientation and Gender Identity Discrimination in Federal Civilian Employment, www.opm.gov/LGBTGuide
§ Bathroom/Facility Access and Transgender Employees, www.eeoc.gov/eeoc/publications/fs-bathroom-access-transgender.cfm
§ Useful resources from other agencies include:
§ OPM Guidance on Employment of Transgender Individuals www.opm.gov/policy-data-oversight/diversity-and-inclusion/reference-materials/gender-identity-guidance/
§ U.S. Department of Labor/OSHA Guide to Restroom Access for Transgender Workers, https://www.osha.gov/Publications/OSHA3795.pdf

Other Laws

Be aware of other laws that also may apply:
Federal contractors and sub-contractors are covered by a separate, explicit prohibition on transgender or sexual orientation discrimination in employment pursuant to Executive Order 13672 and implementing regulations issued and enforced by the U.S. Department of Labor’s Office of Federal Contract Compliance.  For more information, see Frequently Asked Questions on E.O. 13672 Final Rule, www.dol.gov/ofccp/LGBT/LGBT_FAQs.html
State or local fair employment laws may explicitly prohibit discrimination based on sexual orientation or gender identity.  Contact information for state and local fair employment agencies can be found on the page for EEOC’s field office covering that state or locality. On the other hand, if a state or local law permits or does not prohibit discrimination based on sexual orientation or gender identity, the EEOC will still enforce Title VII’s discrimination prohibitions against covered employers in that jurisdiction because contrary state law is not a defense under Title VII. Applicants and employees in those jurisdictions should contact the EEOC directly if they believe they have been subjected to sex discrimination based on sexual orientation or gender identity.
Note that the U.S. Department of Justice’s position regarding Title VII’s coverage of LGBT-related discrimination differs from that of the EEOC. See https://www.justice.gov/ag/page/file/1006981/download.
https://www.eeoc.gov/eeoc/newsroom/wysk/enforcement_protections_lgbt_workers.cfm