Sexual Orientation Discrimination: A Closer Look

Sexual Orientation Discrimination: A Closer Look

As expected, the Supreme Court recently extended the Civil Rights Act’s employment discrimination prohibition to include gender identity discrimination. A number of states and municipalities already had such rules. Additionally, as early as 1989, the Supreme Court indicated that the Civil Rights Act might apply in gender identity cases.

Bostock v. Clayton County clarified overall individual rights in this area, but it did nothing to resolve confusion over this case’s application. As a result, many people are still confused about their rights in specific situations. An internet blog cannot possibly compare to a consultation with an experienced Chicago employment discrimination lawyer. Here are a few common scenarios.

Adverse Employer Action

Most employment discrimination claims in general, and most gender identity claims in particular, involve some form of adverse employment action. 

From a legal standpoint, these claims are usually the same. If the plaintiff is a member of a protected class and suffered adverse action, that action was presumptively discriminatory. Unless the employer provides a legitimate neutral reason for the adverse action, the employer is liable for damages.

Many of these individuals suffer discrimination in employment interviews. Typically, employment forms demand that applicants identify themselves as male or female. Because of the latest Supreme Court ruling, that question is now just as illegal as asking for an applicant’s age or religious preference. 

Common employer arguments in these situations include the form was outdated and the gathered information is only used for statistical purposes. These arguments typically do not hold up in court.

Subsequent adverse action is discriminatory as well. R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission was one of the cases the Supremes consolidated with Bostock. The funeral home case concerned Aimee Stephens, a transgender woman who lost her job at a funeral parlor. Stephens died shortly before the Bostock decision was announced.

The funeral home in question was legitimately concerned that its customers might be uncomfortable with an individual who transitioned from male to female. So, under Bostock, employers probably have a right to transfer such individuals to another position. But that transfer cannot affect pay, benefits, seniority, and so on. Furthermore, it is certainly illegal to fire the individual, which is what happened to Stephens.

Restroom Facilities

Similarly, many people are uncomfortable sharing a restroom with transgender individuals. In these cases, transgender individuals might be forced to accept a compromise.

However, that compromise cannot involve the use of specific restrooms. For example, the employer cannot designate one women’s bathroom in the building as transgender-friendly. That designation stigmatizes transgender workers. Reclassifying certain restrooms as gender-neutral (i.e., a family restroom) might be acceptable.

Workplace Rules

The primary issue in Price Waterhouse v. Hopkins, the aforementioned 1989 case, was that Hopkins, a woman, did not look feminine enough to merit a promotion, at least in the eyes of her superiors. It is illegal to have one set of workplace conduct rules for biological men, one for biological women, and one for transgender individuals. The same result applies to whether these rules are formal or informal.

Reach Out to an Experienced Lawyer

Transgender employment bias is now clearly illegal in Illinois. For a free consultation with an experienced Chicago workplace discrimination lawyer, contact the Law Office of Mitchell A. Kline. We routinely handle matters in Cook County and nearby jurisdictions.