On November 3, 2015, voters in Houston, Texas, the nation’s fourth largest city, soundly rejected a proposed equal rights ordinance which sought to outlaw discrimination based upon sexual orientation and gender identity in city employment, city services, city contracting practices, housing, public accommodations and private employment. The vote was a rare setback for LGBT (Lesbian, Gay, Bisexual & Transgender) activists who had enjoyed recent success in both the legal and public opinion arenas, culminating in the June 28, 2015 Supreme Court opinion in Obergefell v. Hodges recognizing same-sex marriage as a right protected by the Fourteenth Amendment. Particularly troublesome for many Houston voters was the perception the ordinance would require that public restrooms accommodate transgendered individuals.
For employers in Houston who would have been subject to the private employment provisions had the ordinance passed, however, the vote was a victory for three important reasons.
No Express LGBT Obligations Exist for Private Employers under Federal Law
As long as they employ the requisite number of employees, private employers may not discriminate against applicants or employees based upon age, race, color, national origin, citizenship, religion, disability, genetic information or military service. No such express protections exist for sexual orientation or sexual identity. First introduced in Congress in 1994, the Employment Non-Discrimination Act (“ENDA”), seeks to add sexual orientation and gender identity to the list of federally protected categories. To date, the ENDA has not received the requisite support of Congress for passage.
Merely being gay or transgendered, therefore, does not entitle an applicant or employee to seek remedies for discrimination under federal law. Indeed, most federal courts have rejected arguments that sexual orientation and gender identity are federally protected categories. Remedies for discrimination under federal law, therefore, are available only if a claimant shows membership in one of the protected categories listed above.
In this regard, the Equal Employment Opportunity Commission (“EEOC”) interprets the prohibition against sex discrimination in Title VII of the Civil Rights Act of 1964 (“Title VII”) to implicitly include sexual orientation and gender identity. Specifically, the agency has maintained Title VII protects gay and transgendered individuals who can demonstrate they were subject to discrimination, not because they are gay or transgendered, but because their conduct does not conform to traditional male or female stereotypes.
Obviously, proving that an employer was motived by a specific gender stereotype presents an evidentiary hurdle which would not otherwise be faced if discrimination based upon sexual orientation or gender identity was expressly proscribed by federal law. Accordingly, such claims have met with mixed results in federal court.
LGBT Obligations for Private Employers Vary By State
Seventeen states and the District of Columbia have laws expressly banning discrimination in private employment based upon sexual orientation and gender identity: California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, Minnesota, Nevada, New Jersey, New Mexico, Oregon, Rhode Island, Vermont and Washington. Three states have laws making unlawful discrimination in private employment based upon sexual orientation: New Hampshire, New York and Wisconsin.
Texas is one of 28 states which have no express statewide protections for private employees based upon sexual orientation or sexual identity. The other states are Alabama, Alaska, Arkansas, Florida, Georgia, Idaho, Indiana, Kansas, Kentucky, Louisiana, Michigan, Mississippi, Missouri, Montana, Nebraska, North Carolina, North Dakota, Ohio, Oklahoma, Pennsylvania, South Dakota, Tennessee, Virginia, West Virginia and Wyoming.
In 2015, proposed amendments to add sexual orientation and gender identity as protected categories in private employment were introduced without success in Arizona, Kentucky, Michigan, Nebraska, and South Carolina.
Even For States with No Express LGBT Obligations for Private Employers,
Such Obligations May Nevertheless be Imposed by Municipal Ordinance
That a state has no express protections for private employees based upon sexual orientation or sexual identity does not necessarily mean that employers in the state can breathe easy. In many of the 28 states listed above, municipalities have enacted LGBT ordinances which cover private employers. These municipalities include Atlanta, Cincinnati, Cleveland, Columbus, Detroit, Indianapolis, Kansas City, New Orleans, Orlando, Philadelphia, Phoenix, Pittsburgh, St. Louis and Tampa.
In Texas, Austin, Dallas, Fort Worth and Plano have each enacted a LGBT ordinance which includes prohibitions not otherwise imposed by federal or state law. As long as they employ the requisite number of employees, private employers in these cities may not discriminate against applicants and employees on the basis of sexual orientation; gender identity is also protected in the Austin, Fort Worth and Plano ordinances.
At stake in the November 3rd election in Houston, therefore, was whether private employers in the city would be subject to the same proscriptions as employers in Austin, Dallas, Fort Worth and Plano. With the rejection of the proposed equal rights ordinance, private employers in Houston now have (1) no greater legal exposure to claims by gay and transgendered applicants and employees than private employers in Texas municipalities without a LGBT ordinance, and (2) lesser exposure to claims by gay and transgendered applicants and employees than private employers in Texas municipalities with a LGBT ordinance.
Takeaway For Private Employers
Especially for private employers with multiple locations, familiarity with state and municipal laws is critical to a complete understanding of all the legal obligations owed to employees. Varying LGBT obligations is but one example of how such obligations can differ by locality.