LGBTQ+ Discrimination in the Workplace

I have represented members of the gay, lesbian, bisexual, and transgender community in employment discrimination matters. Discrimination members of the LGBT community may experience includes: harassment, discrimination, retaliation, and wrongful termination.

Does the law protect LGBT individuals in the workplace?

The answer to this question is complex. The current state of laws protecting against LGBT discrimination in the workplace is a patchwork. The EEOC does investigate and, in some instances, the EEOC prioritizes cases of sexual orientation discrimination and transgender discrimination.

A. State & Federal Law

State and Federal law protect employees from discrimination because of their sex. Currently courts are ruling on whether this includes sexual orientation. Texas federal courts follow cases decided by the United States Fifth Circuit Court of Appeals in New Orleans.

You must act quickly to preserve your sex discrimination claim. For a private employer, there are short and strict deadlines statute of limitations for sex discrimination cases. From the date of the incident, you must act within 180 days to preserve your claims under the Texas Labor Code and within 300 days to preserve your claims under Title VII.

B. Federal Law Prohibits Discrimination Based on Gender Stereotypes

The 5th Circuit decided in EEOC v. Boh Brothers Construction, L.L.C. that an employer cannot discriminate against employees based on gender stereotypes. In this case, the plaintiff suffered, “almost-daily verbal and physical harassment because Woods did not conform to Wolfe’s view of how a man should act.”

The 5th Circuit Has Twice Left Sexual Orientation Discrimination and Transgender Discrimination an Open Question

The issue of sexual orientation discrimination has come before the 5th Circuit before, and the Court declined to opine, saying in Brandon v. Sage Corporation, “We do not opine here whether Brandon correctly surmised that Eure [the apparently transgender employee] may claim some protection under Title VII.” In Stewart v. BrownGreer, P.L.C., the Court also left open the question when it assumed for the sake of the argument that Title VII of the Civil Rights Act of 1964 protected employees from sexual orientation discrimination.

C. Houston Non-discrimination Ordinance

Some Texas cities, such as Austin and Dallas, have non-discrimination ordinances and agencies to investigate sexual orientation discrimination in the workplace. Unfortunately, in November 2015 Houston’s non-discrimination ordinance (HERO) was overturned by popular vote, removing municipal protections for gay, lesbian, bisexual, and transgendered individuals in the workplace.

Does the EEOC investigate LGBT employment discrimination?

Yes. The EEOC does investigate LGBT employment discrimination claims, and in some cases, the EEOC has prioritized cases involving LGBT workplace rights. In December 2012, the EEOC developed the Strategic Enforcement Plan (SEP) which made a the "coverage of lesbian, gay, bisexual and transgender individuals under Title VII's sex discrimination provisions, as they may apply" one of the agency’s “top priorities.” Currently, the EEOC has joined litigation, written briefs, and resolved cases involving LGBT discrimination in the workplace.

What does LGBT discrimination look like?

A few ways an employer may engage in LGBT employment discrimination includes: failing to hire, failing to promote, terminating, and/or retaliating against LGBT individuals who complain about discrimination.

Examples of discrimination may include:

  • Homophobic slurs;
  • Transphobic slurs;
  • Gender stereotypes, such as acting “too effeminate” or “too butch;”
  • Offensive mocking;
  • Misgendering trans employees;
  • Forcing trans employees to use a certain restroom; and
  • Failure to stop other employees from sexual orientation discrimination after making a complaint.

Contact me, your Texas Employment Attorney

As a member of the LGBT community myself, I have an affinity for helping members of Houston’s LGBT community. if you think you have experienced LGBT discrimination in the workplace including, harassment, retaliation, or wrongful termination. Call me, your houston employment attorney or contact me here to schedule a consultation.