Changes that may impact LGBT rights in the workplace have employers spinning. This week’s news about the Trump administration’s rescission of federal guidance allowing transgender students to use bathrooms corresponding to their gender identity seems philosophically at odds with a White House statement last month in which the President said he would continue to enforce a prior executive order protecting the rights of the LGBT community in the workplace. That statement followed the leaked executive order that was viewed as paving the way to effectively legalize discrimination against members of the LBGT community and others in the name of religious freedom. That draft order was ultimately scuttled.
This week’s news suggests that Attorney General Jeff Sessions intends to roll back the Obama administration’s move to expand civil rights over the last eight years. The new guidance follows on the heels of a temporary injunction blocking the transgender bathroom directive nationwide. Press Secretary Sean Spicer said that this move is in line with President Trump’s campaign promise to leave certain issues in the hands of the states.
And the states may well pick up the slack. Laws against discrimination on the basis of sexual orientation or gender identity vary from state to state. This month, a bill was introduced in Florida to bar such discrimination in employment, housing, and public accommodations. About 20 other states have laws barring discrimination based on sexual orientation and/or gender identity, including California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New Jersey, New Mexico, Nevada, New York, Oregon, Rhode Island, Utah, Vermont, Washington, and Wisconsin.
Even without laws barring such discrimination, corporate America has been at the forefront of the move for equality. The Human Rights Campaign has published an annual corporate equality index since 2002. In its first year, only 13 companies received a perfect score; by 2016, the number had increased to 407. The shift in corporate culture attitudes may well mirror changing attitudes of the general population and the increasing numbers of millennials in the workplace. The Pew Research Center has found that the majority of Americans now support gay marriage –a reversal from the findings of the same poll conducted in 2001.
While schools may no longer need to worry about accommodating transgender restroom choices as a matter of federal law, employers should still be concerned about the workplace. The EEOC continues to argue that Title VII now bars discrimination based on sexual orientation and gender identity. Whether the EEOC will reverse course on that position once Republicans hold a majority of seats on the commission and a new general counsel is appointed remains to be seen.
Meantime, employers should err on the side of caution and ensure that discrimination or harassment on the basis of sexual orientation and gender identity is properly addressed in the workplace.
**This topic was also discussed in Akerman’ s Employment Law Podcast, WorkedUp, in episode 8: Chat with Former EEOC General Counsel David Lopez. You can listen to the episode and subscribe here.