Idaho media over the past few years has focused
heavily on the “Add the Words” campaign, which advocates changing the Idaho
Human Rights Act to add sexual orientation and gender identity to the
provisions prohibiting employment and public accommodations
discrimination. With the legislature’s
actions in refusing to “Add the Words” and all of this publicity, it might
surprise many Idaho employers to learn that they may already be subject to such
prohibitions.
The answer to the question lies in the dual nature of
the regulatory environment in Idaho, and in the changing nature of the enforcement
and interpretation of those laws over the past two decades. Most employers in Idaho are covered by the
Idaho Human Rights Act, which covers employers with 5 or more employees. But many employers are also covered by Title
VII of the federal Civil Rights Act, which covers all employers with over 15
employees. Many educational employers
are also covered by Title IX.
Over the past two decades, interpretation of Title VII
and Title IX has progressed to the point that it is now generally accepted by
the federal regulatory agencies that discrimination against an employee because
of gender identity (often called transgender) is discrimination on the basis of
sex, and thus prohibited under Title VII and Title IX. And in recent years, the EEOC and the courts
have also begun to examine discrimination against sexual orientation as a form
of sex discrimination as well. Recent EEOC
pronouncements and court decisions make these two points clear. In 2012, the EEOC adopted a Strategic Enforcement
Plan that included as a priority: “coverage
of lesbian, gay, bisexual and transgender individuals under Title VII's sex
discrimination provisions, as they may apply." Since then, the EEOC has prosecuted many
actions involving these issues, has begun tracking complaints related to these
issues, and the EEOC has recovered $4,138,828 in monetary benefits for LGBT
worker claims in the enforcement years 2013-2015. Over
the past decade, the courts seem to be increasingly sympathetic to the EEOC’s
interpretation of Title VII, and the U.S. Supreme Court’s decision in 2015
banning state action to prohibit same sex marriages will only increase court
acceptance of the EEOC’s position. In
January of 2016, in the most recent appellate court opinion to address these
related issues, the Eleventh Circuit Court of Appeals (located in the Deep
South), found that discrimination on the basis of gender identity (transgender)
would, if proven, violate Title VII and subject the employer to liability. Chavez
v. Credit Nation Auto Sales LLC, 11th Cir., No. 14-14596 (Jan. 14, 2016). (PS The answer is even more clear if an Idaho employer is a federal contractor, because an amendment to Executive Order 11246 in 2014 imposed anti-discrimination bans based on sexual orientation and gender identity for any federal contractors. In addition, some municipalities, like the City of Boise, have explicitly prohibited discrimination by employers, and will impose fines or jail time for violations-no private right of action for damanges)
Tips
for Employers:
- Employers must ensure that decisions related to employees are made solely on the basis of legitimate and nondiscriminatory reasons; the mere suggestion of discriminatory animus could expose employers to unexpected liability and the expense of defending a claim.
- Employers should consider adding to their training and employee handbooks a statement about their intention to treat all employees equally and fairly regardless of their marital status, sexual orientation or sexual identity. Such a statement can be added to an existing provision declaring that the organization does not discriminate unlawfully on the basis of race, religion, color, national origin, age, or disability. It’s worth the effort to be sensitive in these areas. This is a proactive step that not all employers feel comfortable with, but it is a preventive step that will assure a more respectful workplace, and prevent potential legal action in the future.
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