Tuesday, October 28, 2014

The times they are a changin’ for LGBT discrimination

Last week, the The U.S. Office of Special Counsel announced a landmark determination that the Department of the Army engaged in “frequent, pervasive and humiliating,” gender-identity discrimination against an Army software specialist who had transitioned from male to female.

According to a press release issued by the OSC, the employee

experienced a significant change in working conditions when the Army improperly restricted her restroom usage, repeatedly referred to her by her birth name and male pronouns, and excessively monitored her conversations with coworkers. In response, the Army agreed to provide training to correct and prevent future discrimination. The Army already had permitted Ms. Lusardi to use the restroom associated with her gender identity.

You can download the full decision here.

Congress has been slow to amend Title VII expressly to prohibit LGBT discrimination. Yet, courts, agencies, the White House and, now, the U.S. military, continue to fill in the gaps.

The time will come when it becomes per se illegal for all employers to discrimination against an employee’s sexual orientation or gender identity. Until that time, we will have to rely on courts’ creative solutions to fit these claims under Title VII’s general prohibitions against sexual stereotyping and sexual discrimination. Nevertheless, employers should not wait for Title VII to include LGBT as a protected class. Instead, employers can, and should, do right by all of their employees by adopting progressive anti-discrimination policies that make it clear that they are employers are inclusion for all employees, even if Title VII still permits discrimination against some.