Title VII of the Civil Rights Act of 1964, which prohibits discrimination based on race, color, sex, national origin or religion, does not explicitly bar discrimination based on sexual orientation or gender identity, and attempts to amend it to add such a prohibition have failed thus far. However, the United States Equal Employment Opportunity Commission now recognizes discrimination based on sexual orientation or gender identity as a form of sex discrimination, as does Executive Order 11246.
It is important to know the law and not speculation as calls come forth from individuals claiming employment discrimination based upon their sexual orientation and identity. The United States Equal Employment Commission has stated in part that: (See eeoc.gov)
“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 United States EEOC has explicitly provided specific examples of discrimination regarding sex discrimination that includes the transgender issue /LGBT-related claims:
• 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.
