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LGBT Issues

  1. The law on LGBT (lesbian, gay, bisexual, and transgender) issues in general has been developing rapidly on a federal level - despite the lack of specific mention of such groups in employment discrimination statutes, federal courts and agencies have been issuing new guidelines for LGBT employees (see below).

  2. Texas state law (Chapter 21 of the Texas Labor Code) does not have any provision directly addressing these issues. However, since most Texas employers are also covered by federal employment laws, it is important to be aware of how federal agencies are interpreting the statutes they enforce.

  3. Some Texas cities have adopted local ordinances regarding LGBT discrimination in private employment (Austin, Dallas, Fort Worth, Plano).

  4. Foundational ruling: U.S. Supreme Court case of Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) - the Court held that a female manager had been illegally discriminated against due to her failure to conform to established gender stereotypes.

  5. Similar cases extended the "non-conformance with gender stereotypes" concept to same-sex harassment and LGBT protection: Oncale v. Sundowner Offshore Services, 523 U.S. 75 (1998); Schwenk v. Hartford, 204 F.3d 1187 (9th Cir. 2000); Smith v. City of Salem, Ohio, 378 F.3d 566 (6th Cir.2004); Kastl v. Maricopa Co. Cmty. Coll. Dist., 325 Fed.Appx. 492 (9th Cir. 2009); Glenn v. Brumby, 663 F.3d 1312 (11th Cir. 2011); EEOC v Boh Brothers Const. Co., L.L.C., 731 F.3d 444 (5th Cir. 2013); Schroer v. Billington, 577 F.Supp.2d 293 (D.D.C. 2008); see also Lopez v. River Oaks Imaging & Diagnostic Group, Inc., 542 F.Supp.2d 653 (S.D.Tex.2008), and Creed v. Family Express Corp., No. 3:06-CV-465RM, 2009 WL 35237 (N.D. Ind. Jan. 5, 2009).

  6. Federal agency rulings with regard to federal employees: Lusardi v. Department of the Army, Appeal No. 0120133395 (October 6, 2015) (see also https://osc.gov/Resources/2014-08-28_Lusardi_PPP_Report.pdf regarding the same case); Macy v. Dep't of Justice, EEOC Appeal No. 0120120821 (April 20, 2012); Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120122376 (February 19, 2013); Complainant v. Dep't of Energy, EEOC Appeal No. 0120131136 (August 13, 2013); and Complainant v. Dep't of the Interior, EEOC Appeal No. 0120121354 (August 13, 2013).

  7. The U.S. Department of Labor's Office of Federal Contract Compliance Programs (OFCCP) has issued new requirements for employers working on federal contracts (http://www.dol.gov/ofccp/LGBT.html). Further guidance from OSHA is online at https://www.osha.gov/Publications/OSHA3795.pdf.

  8. The latest EEOC guidance for covered employers is online at https://www.eeoc.gov/eeoc/newsroom/wysk/enforcement_protections_lgbt_workers.cfm. More information from the federal government is on the U.S. Department of Labor's website at http://www.dol.gov/asp/policy-development/lgbt-workers.htm.

  9. Due to the rapid pace of developments in this area of the law and to the complexity of the issues, employers should contact experienced employment law counsel if such an issue arises in the workplace.

 

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