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What Tennesseans should know about LGBT worker protections

Discrimination claims based on sexual orientation or gender identity are expect to rise due to new rules and enforcement.

Joycelyn Stevenson and Rachel Rosenblatt, The Tennessean

Earlier this year, Littler Mendelson surveyed 944 in-house counsel, HR professionals, and C-suite executives on key legal, economic, and social issues impacting the workforce in 2016. 

LGBT flag

 

In the largest year-over-year change in Littler’s survey results, 74 percent of respondents expect more discrimination claims over the next year related to the rights of LGBT workers (up from 31 percent in 2015). This change is driven by LGBT discrimination being one of the top enforcement priorities for the Equal Employment Opportunity Commission (EEOC), but also mirrors key focus areas for the Obama administration, government efforts at the state and federal levels, and increased public awareness. 

Given that 77 percent of voters know someone who is LGBT, there are many things you should know about relevant employment protections.

What is the law?

There is no federal law that explicitly protects LGBT workers, although the EEOC interprets and enforces Title VII's prohibition of sex discrimination as forbidding any employment discrimination based on sexual orientation or gender identity. 

Joycelyn Stevenson

Many, but far from all, states and localities are passing laws to prohibit discrimination in hiring, promotion, job assignment, termination, and compensation on the basis sexual orientation, but fewer extend those protections to include discrimination based on gender identity. There is no Tennessee law prohibiting discrimination against LGBT employees. However, Nashville, Memphis, and Knoxville have city codes that explicitly protect against discrimination based on sexual orientation and gender identity for city employees.

Gender-appropriate restroom usage

A lot of the recent political and social debate has surrounded transgender people’s rights to bathroom access in the workplace, public places, and schools.

In May 2016, in response to North Carolina’s controversial bathroom law, the EEOC issued a fact sheet declaring that employers may not restrict the ability of transgender employees to use restrooms consistent with their gender identity.  

Earlier this year, the Tennessee legislature introduced a bill that would require students in schools to use the restroom that corresponds with their sex at birth, but this never became law. Instead, Tennessee joined several other states in filing a lawsuit over the Obama administration’s recent guidance directing public schools to allow transgender students to use bathrooms matching their gender identity. 

Rachel Rosenblatt

On August 3, the U.S. Supreme Court paused the administration's transgender bathroom mandate that required schools to allow transgender students to use the bathroom that is consistent with their gender identity.

In the workplace context, OSHA has issued guidelines stating that employees should be permitted to determine for themselves the most appropriate and safest restroom to use, and employers should refrain from requiring or deciding which restroom should be used by an employee.  Wherever possible, single-stall or single-occupant bathrooms or dressing rooms should be made available for all employees’ use.  Otherwise, employers should allow employees to use the restroom that corresponds to their gender identity without requiring medical or legal documentation of their gender identity.

What can you do?

More than 90 percent of Fortune 500 companies have policies prohibiting discrimination on the basis of sexual orientation, and 60 percent include gender identity protection. In addition to updating company policies, employers should train managers and employees about those policies and expected behavior. 

Employers should make sure that employees understand the expectations regarding proper name and pronoun usage for transgender employees and should also analyze their dress codes to ensure that they are gender neutral.  Ultimately, successful employers commit to providing a workplace free of harassment and discrimination for all employees and celebrate all aspects of diversity.

Joycelyn Stevenson is a shareholder in the Nashville office of Littler Mendelson. She can be reached at jstevenson@littler.com or (615) 514-4121. Rachel Rosenblatt is an associate in the Nashville office of Littler Mendelson. She can be reached at rrosenblatt@littler.com or (615) 383-3278.