SHOULD IDAHO EMPLOYERS INCLUDE LGBT NONDISCRIMINATION IN THEIR POLICIES?

February 26, 2016

Author:  Bobbi K. Dominick

Over the past few years, Idaho media has focused heavily on the “Add the Words” campaign, which advocates changing the Idaho Human Rights Act to add sexual orientation and gender identity to the provisions prohibiting employment and public accommodations discrimination.  With the legislature’s actions in refusing to “Add the Words” and all of this publicity, it might surprise many Idaho employers to learn that they may already be subject to such prohibitions. 

The answer to the question lies in the dual nature of the regulatory environment in Idaho, and in the changing nature of the enforcement and interpretation of those laws over the past two decades.  Most employers in Idaho are covered by the Idaho Human Rights Act, which covers employers with five (5) or more employees.  But many employers are also covered by Title VII of the federal Civil Rights Act, which covers all employers with over 15 employees.  Many educational employers are also covered by Title IX. 

Over the past two decades, interpretation of Title VII and Title IX has progressed to the point that it is now generally accepted by the federal regulatory agencies that discrimination against an employee because of gender identity (often called transgender) is discrimination on the basis of sex, and thus prohibited under Title VII and Title IX.  And in recent years, the Equal Employment Opportunity Commission (EEOC) and the courts have begun to examine discrimination against sexual orientation as a form of sex discrimination as well.  Recent EEOC pronouncements and court decisions make these two points clear. 

In 2012, the EEOC adopted a Strategic Enforcement Plan that included “coverage of lesbian, gay, bisexual and transgender individuals under Title VII’s sex discrimination provisions, as they may apply” as a priority.  Since then, the EEOC has prosecuted many actions involving these issues, has begun tracking complaints related to these issues, and the EEOC has recovered $4,138,828 in monetary benefits for LGBT worker claims in the enforcement years 2013-2015. 

Over the past decade, the courts seem to be increasingly sympathetic to the EEOC’s interpretation of Title VII, and the U.S. Supreme Court’s decision in 2015 banning state action to prohibit same sex marriages will only increase court acceptance of the EEOC’s position.  In the most recent appellate court opinion to address these related issues in January 2016, the Eleventh Circuit Court of Appeals found that discrimination on the basis of gender identity (transgender) would, if proven, violate Title VII and subject the employer to liability. Chavez v. Credit Nation Auto Sales LLC, 11th Cir., No. 14-14596 (Jan. 14, 2016).

INSIGHTS FOR EMPLOYERS

Employers must ensure that decisions related to employees are made solely on the basis of legitimate and nondiscriminatory reasons.  The mere suggestion of discriminatory animus could expose employers to unexpected liability and the expense of defending a claim.

Employers should consider adding to their training and employee handbooks a statement about their intention to treat all employees equally and fairly regardless of their marital status, sexual orientation or sexual identity.  Such a statement can be added to an existing provision declaring that the organization does not discriminate unlawfully on the basis of race, religion, color, national origin, age, or disability.  This is a proactive step that will assure a more respectful workplace and prevent potential legal action in the future.

 

Please contact a Gjording Fouser lawyer at 208.336.9777 if you would like any additional information about this topic or any other employment issues facing your company.