Risk Management

Title VII interpretations on LGBT issues perplex employers

Gloria Gonzalez

April 26, 2017 Reprints

Emerging Risks Employment Practices General liability Regulation Risk Management More + Less -

Title VII interpretations on LGBT issues perplex employers

PHILADELPHIA — Courts are just as confused as employers about whether federal law prohibits discrimination based on gender identity and sexual orientation.

People believe that there are federal protections for the LGBT community nationwide that really don’t exist, Victoria Nolan, risk and benefits manager for Clean Water Services in Hillsboro, Oregon, said at the Risk & Insurance Management Society Inc.’s annual conference in Philadelphia on Tuesday.

In Chavez v. Credit Nation Auto Sales, the 11th U.S. Circuit Court of Appeals in Atlanta last year allowed a lawsuit filed by a terminated transgender employee to move forward, but the same court ruled in Evans v. Georgia Regional Hospital in March that Title VII of the Civil Rights Act of 1964 does not prohibit employers from discriminating against employees based on sexual orientation.

“So, are you confused?” said Liani Reeves, attorney with Bullard Law in Portland, Oregon.

“Obviously, the courts are. This is why the definition of what is sex under Title VII has become so important because claims that are couched in terms of ‘I’m a woman and I’m being discriminated against because my behavior does not conform to what other people expect as a woman’ are treated differently than ‘I’m a woman who happens to like other women and I’m being discriminated against because of my sexual orientation.’ That has not received the same amount of protection.”

The issue is complicated by uncertainty about the Trump administration’s position, she said.

In 2015, the U.S. Equal Employment Opportunity Commission took the position that Title VII protects workers against sexual orientation discrimination and the agency’s official interpretation has not changed, but the U.S. Department of Justice’s position, updated on Jan. 25, does not include discrimination based on sexual orientation.