This week’s news included not one, but two big announcements from the federal government about “sex” rights.
On Wednesday, President Trump sent out a series of tweets, stating that the federal government will no longer hire transgender men or women to serve in the United States military. Then on Thursday, the Department of Justice (“DOJ”) filed a brief with a federal court, declaring its position that federal law does not protect employees from discrimination based on their sexual orientation.
Now to the reason you’re reading this article: how do the White House’s tweets and the DOJ’s brief affect non-military employers?
(Hint: the answer depends on how you interpret the word “sex.”)
Title VII of the Civil Rights Act of 1964 (“Title VII”) prohibits employers with 15 or more employees from discriminating against their employees based on race, color, religion, sex, or national origin. It has long been established that you cannot fire an employee because she is a woman, or because he is a man. Whether and how Title VII’s protections against sex discrimination apply to LGBT employees is not nearly as clear.
Not surprisingly, federal courts do not agree on how to define “sex”. Earlier this year, the 7th Circuit Court of Appeals in Chicago issued a very controversial decision that “sex” includes sexual orientation. This means that in Wisconsin, Illinois, and Indiana, LGB employees are protected from discrimination based on their sexual orientation. The 7th Circuit Court of Appeals’ opinion directly conflicts with the 2nd and 11th Circuit Court of Appeals, which currently do not interpret “sex” under Title VII to prohibit sexual orientation discrimination.
So, what does “sex” mean to Georgia employers?
In Georgia, if you are a private employer with 15+ employees or a government employer, then every transgender employee is protected from discrimination, retaliation, or harassment under Title VII and Section 1983. Georgia employers must also know that both Title VII and Section 1983 protect employees whose dress and physical appearance may not match the traditional stereotypes associated with their gender. President Trump’s tweets do not change any of these safeguards.
The same is not true for sexual orientation. Employees working for private Georgia businesses (again, with 15+ employees) are not protected against discrimination based on their sexual orientation. The 11th Circuit Court of Appeals actually issued an opinion earlier this year that dismissed a claim filed against Georgia Regional Hospital for allegedly discriminating against a former employee because she was gay.
If you have any questions about complying with Title VII or handling an EEOC charge of discrimination filed by a transgender employee, please call our labor and employment attorneys at (770) 383-4660 or email at firstname.lastname@example.org.