By Robert G. Chadwick, Jr., Managing Member, Seltzer Chadwick Soefje & Ladik, PLLC
Until recently, North Carolina law broadly prohibited discrimination in private employment on the basis of “sex”, and did not foreclose a private right of action by an aggrieved person. On March 23, 2016, this law was amended to change “sex” to “biological sex”, and to expressly foreclose a private right of action based upon any protected category, including race, religion, color, national origin, age or handicap. The new legislation also purports to supersede and preempt any local government ordinance which conflicts with this amendment.
Along with a November 3, 2015 voter defeat of a Houston anti-discrimination ordinance, the new North Carolina law is a setback for LGBT (Lesbian, Gay, Bisexual & Transgender) advocates who had enjoyed previous success in obtaining legal protections from bias in private employment. For three important reasons, these events have also served to highlight the inconsistency of employment laws to which private employers with multiple locations can be subject.
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 both 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. The first lawsuits by the agency alleging sexual orientation discrimination were filed in March 2016.
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
Nineteen states and the District of Columbia have laws expressly barring discrimination by employers based upon sexual orientation and gender identity: California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, Nevada, New Jersey, New Mexico, Oregon, Rhode Island, Utah, 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, Arizona, Arkansas, Florida, Georgia, Idaho, Indiana, Kansas, Kentucky, Louisiana, Michigan, Mississippi, Missouri, Montana, Nebraska, North Carolina, North Dakota, Ohio, Oklahoma, Pennsylvania, South Carolina, South Dakota, Tennessee, Virginia, West Virginia and Wyoming.
Absent a preemptive State law, LGBT Obligations for Private Employers May be Also Imposed by Municipal Ordinance
Even where statewide protections exist, some municipalities have enacted their own LGBT anti-discrimination ordinances for private employers. These municipalities include Baltimore, Boston, Chicago, Denver, Los Angeles, Milwaukee, Minneapolis, New York, San Francisco and Seattle.
That a state has no express protections for private employees based upon sexual orientation or sexual identity, moreover, 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.
In North Carolina, however, the ability of municipalities to enforce ordinances barring LGBT discrimination by private employers has now been thwarted by the amendments passed on March 23, 2016. An ordinance passed by a municipality in the future barring any type of discrimination in private employment is thus subject to dismissal due to preemption by state law.
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.
DEFENDING MANAGEMENT 