EEOC Says LGBT Discrimination Is Illegal, Despite New Laws

Elizabeth McLean

Despite legislation that passed in two states recently, discrimination against people because of sexual orientation remains illegal.

North Carolina’s HB 2, and Mississippi’s HB 1523, both enacted into law this month, seem to allow employers to discriminate based on sexual orientation or gender identification.  Keep in mind, though, that the Equal Employment Opportunity Commission recently announced its intention to increase enforcement efforts against employers alleged to have violated Title VII on the basis of sexual orientation discrimination and gender stereotyping.

Recent EEOC Enforcement of LGBT Protection

The National Law Review nicely summarizes the Commission’s most recent filings in this area:

Notably, on March 1, 2016, the EEOC filed its first two lawsuits challenging sexual orientation discrimination. The first suit, filed in Pennsylvania federal court, was brought against Scott Medical Health Center on behalf of a gay male employee after a manager made anti-gay slurs and other offensive comments about the employee’s sexuality and sex life. The suit also alleges the employer’s president failed to take any action, despite knowledge of the harassment.

The second suit, filed in Maryland federal court, was brought against IFCO Systems on behalf of a lesbian employee who alleges harassment from a supervisor. The Commission alleges the supervisor made statements such as, “I want to turn you back into a woman” and “Are you a girl or man?” and quoted biblical passages that indicated a man should be with a woman, and not a woman with a woman. The complaint also alleges that the woman was fired in retaliation for complaining to management and reporting the harassment on the employee hotline.

What Employers Should Know

The intersection of high-profile state laws and high-profile federal cases filed by the EEOC makes it more important than ever to check that your hiring and retention practices follow EEOC guidelines.

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The state laws mentioned above, and any similar state-level legislation passed in the future, will most certainly be subject to litigation. In fact, the constitutionality of HB 2 has already been challenged in North Carolina.

It makes good legal sense to maintain an inclusive and non-discriminatory workplace and business for your employees and customers. After all, federal law has not changed, and federal law trumps state law.

That means an action that’s unconstitutional cannot be legalized by the states, even when such action is alleged to protect religious freedom.

Protect yourself and your employees by following the Commission's guidelines. Understand that the EEOC sees sexual orientation discrimination as an actionable claim, under the branch of sex discrimination.

And, at least a few of your employees and customers may just thank you.

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Disclaimer: The resources provided here are for educational purposes only and do not constitute legal advice. We advise you to consult your own counsel if you have legal questions related to your specific practices and compliance with applicable laws.

Elizabeth McLean

Elizabeth McLean


Elizabeth McLean is GoodHire's General Counsel, an FCRA-compliance attorney and expert in the background screening legal landscape. She monitors all things FCRA and EEOC. That means she follows new legislation and court decisions and advises the company on processes that follow compliance best practices.

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