Smart strategies: Are LGBT employees protected from discrimination?
Employers should closely monitor the shifting landscape under federal, state and local laws prohibiting discrimination, especially as they pertain to LGBT employees.
Title VII of the Civil Rights Act of 1964 prohibits employment discrimination based on race, color, religion, sex and national origin. Title VII applies to employers with 15 or more employees, including federal, state and local governments.
Under Title VII, an employer may not discriminate with regard to any term, condition, or privilege of employment.
While Title VII does not explicitly protect employment rights based on sexual orientation or gender identity, some circuit courts of appeal have recently held that Title VII’s protection against discrimination “because of … sex” provides protection based on sexual orientation, and others have extended protection to transgender employees, either on the basis of transgender status or as a form of prohibited “sex stereotyping.”
Neither the 8th Circuit Court of Appeals (covering Missouri) nor 10th Circuit Court of Appeals (covering Kansas) have recently ruled on the scope of Title VII’s protections against sex-based discrimination, but older case law in these circuits holds that discrimination based on sexual orientation and gender identity does not violate Title VII.
Nonetheless, the 8th Circuit has a pending case requesting the court change its position.
Even the federal government itself is split on the issue. The Equal Employment Opportunity Commission, which is responsible for enforcement of Title VII, has taken the position that all LGBT discrimination violates Title VII.
The Department of Justice takes the opposite view — reversing the prior administration’s position.
Most importantly, the U.S. Supreme Court is currently considering whether to hear three employment cases addressing whether discrimination based on sexual orientation and gender identity violates Title VII. Whether — and how — the Supreme Court rules may have significant consequences for employers subject to Title VII.
A U.S. Supreme Court decision would be particularly significant for Kansas and Missouri employers, as neither state currently prohibits employment discrimination under state law.
Like Title VII, the Missouri Human Rights Act (MHRA) prohibits sex discrimination but does not explicitly prohibit discrimination on the basis of sexual orientation or gender identity. The MHRA generally applies to employers with six or more employees.
As late as July 2017, the Missouri Court of Appeals for the Western District of Missouri held that the MHRA did not prohibit discrimination on the basis of sexual orientation or gender identity, and the Missouri Human Rights Commission agrees.
In October 2017, however, the same Court of Appeals ruled that even though sexual orientation is not a protected class, the MHRA does prohibit employment discrimination in cases of “sex-based stereotyping.”
The Missouri Supreme Court took up two of these cases in 2018 and is expected to decide within months whether the scope of sex discrimination under the MHRA extends to LGBT employees. Missouri Gov. Mike Parson also recently indicated that he is open to the idea of extending anti-discrimination protections to LGBT Missourians.
As with Missouri state law, the Kansas Act Against Discrimination (KAAD) prohibits discrimination in employment based on sex but does not explicitly extend to discrimination on the basis of sexual orientation or gender identity. The Kansas Human Rights Commission’s complaint form instructions specifically state that “sex” under the KAAD does not include sexual orientation or gender identity.
The KAAD applies to all public employers and private employers with four or more employees.
LGBT state employees in Kansas and Missouri may also be covered by executive orders.
In 2007, then-Gov. Kathleen Sebelius issued an executive order banning discrimination on the basis of sexual orientation or gender identity in Kansas state employment. Gov. Sam Brownback rescinded the order in 2015, but newly elected Gov. Laura Kelly pledged to reinstate these protections.
In 2010, then-Missouri Gov. Jay Nixon also issued an executive order prohibiting the executive branch of the Missouri government from discriminating in employment on the basis of sexual orientation.
While LGBT employment protections under federal and state law are far from settled, employers also should take note of local ordinances prohibiting discrimination on the basis of sexual orientation and/or gender identity. These include Wyandotte County in Kansas, as well as the following cities:
- Kansas City, Kan.
- Kansas City, Mo.
- Roeland Park
- Prairie Village
As the laws in this area continue to change and evolve, employers should regularly review their policies and practices with employment counsel.