HB2 Does Not Absolve Employers of LGBT Discrimination Liability
With all the recent media attention surrounding North Carolina’s HB2, you may be under the impression that North Carolina’s “at will” employment state laws allow employers to treat LGBT workers differently. While North Carolina state law does not afford a specific protection against sexual orientation or identity, federal law does through the Title VII of the Civil Rights Act of 1964 (“Title VII”).
Any employer with 15 or more employees, including part-time and temporary workers, is subject to Title VII and its provisions. Title VII protects against all discrimination based on race, color, sex, religion, and national origin and retaliation against workers who oppose discriminatory employment practices. An employer who treats LGBT workers any differently than non-LGBT workers in their terms, conditions, or privileges of employment could face a charge of discrimination and a potential federal lawsuit.
The Equal Employment Opportunity Commission (“EEOC”) recently issued a guidance document entitled, “What You Should Know About EEOC and the Enforcement Protections for LGBT Workers”, that discusses how the EEOC interprets and enforces Title VII’s prohibition of sex discrimination based on gender identity or sexual orientation regardless of any contrary state or local laws.
Examples of LGBT-related sex discrimination claims outlined in the guidance document 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. This includes requiring an employee to use a specific restroom when others are not required to do so, or having to walk a further distance than other employees to use a specific restroom.
- 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.
- Providing a lower salary 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.
An employee has 180 days after the alleged date of discrimination to file a charge with the EEOC. The EEOC then investigates the claim and seeks to resolve the matter voluntarily through mediation. If the EEOC is unable to secure a voluntary resolution, it has the authority to file a lawsuit in federal court, or it can release the employee to file the lawsuit themselves. The employee has 90 days to file a lawsuit after receipt of the EEOC’s notice of the right to sue.
For more information, see the following EEOC fact sheets:
- Bathroom Access Rights for Transgender Employees Under Title VII of the Civil Rights Act of 1964, eeoc.gov/eeoc/publications/fs-bathroom-access-transgender.cfm and https://www.osha.gov/Publications/OSHA3795.pdf
- 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. opm.gov/LGBTGuide
Kerry Everett is an attorney with Sodoma Law, PLLC. She counsels employers on a wide range of employment matters, providing clear, direct guidance designed to promote legal compliance, while remaining aware of workplace realities. She also represents employees in many types of discrimination cases in federal and state courts.