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Expanding the definition of ‘protected class’

kappelman-walker-masseyThere was a time when human resources practitioners and employment attorneys could list the “protected classes” — groups of people protected from discrimination and harassment in the workplace — like counting to five: race, color, religion, sex and national origin.

Those were the five classes protected by Title VII of the Civil Rights Act of 1964. Federal protections were gradually expanded to include age, pregnancy, citizenship status, veteran status and genetic information.

In recent years, the list of protected classes applicable to nationwide employers has grown substantially with the passage of more restrictive state and local laws. The requirements are ever-changing, particularly with regard to LGBTQ protections.

This evolving landscape creates challenges for employers, particularly those operating in multiple states or nationwide, when updating policies, handbooks and training materials.

Recent state activity

Employers may tend to think of LGBTQ protections as limited to a minority of progressive states. However, more than 20 states and the District of Columbia have enacted legislation recognizing employment protections on the basis of sexual orientation, gender identity, sex stereotyping and gender expression, or some combination of those.

Thus, employers operating nationwide who prefer to have one harassment policy applicable all employees nationwide, with policy addenda for states that require additional protections, should now consider whether to make a substantial change: eliminate the addenda and implement one nationwide policy that prohibits discrimination on the basis of any class that is protected in any state.

This is particularly important because even in the absence of statutes recognizing protected classes, state courts have interpreted anti-discrimination laws as providing broad protections.

For example, in the absence of a state statute banning sexual orientation discrimination, the Missouri Supreme Court recently recognized a gay male employee’s sex discrimination claim alleging a violation of the Missouri Human Rights Act. The employee argued that he was treated differently than similarly situated co-workers because he “did not exhibit the stereotypical attributes of how a male should appear and behave.” See Lampley v. Missouri Comm’n on Human Rights, 2019 WL 925557, at *24 (Mo. Feb. 26, 2019).

That same day, the Missouri Supreme Court also recognized the public accommodation sex discrimination claim of a transgender female-to-male student who was denied access to the boys’ restrooms and locker rooms in a public middle school. See R.M.A. by Appleberry v. Blue Springs R-IV Sch. Dist., 568 S.W.3d 420, 428 (Mo. 2019) (finding plaintiff’s claim that he was denied access to facilities because of his sex sufficient to claim of sex discrimination under the MHRA, despite the fact that the MHRA does not explicitly cover claims based on gender identity).

In addition, some states and localities have recognized additional protected classes, such as political affiliation (D.C.) or familial status (D.C., Connecticut, New York and others), and others have enacted more stringent requirements for public employers and government contractors.

Federal circuit split

The Equal Employment Opportunity Commission interprets and enforces Title VII’s protection from discrimination on the basis of sex as including discrimination based on sexual orientation or gender identity. But not all federal courts agree.

The 5th and 11th circuits recently denied Title VII protection based on LGBTQ status. In Wittmer v. Phillips 66 Co., 915 F.3d 328, 330 (5th Cir. 2019), the court ruled in favor of the employer in a transgender discrimination case based on 40-year-old precedent that Title VII does not prohibit discrimination on the basis of sexual orientation. Likewise, in Bostock v. Clayton Cty. Bd. of Comm’rs, 723 F. App’x 964, 965 (11th Cir. 2018), the court held that Title VII does not bar discrimination on the basis of sexual orientation.

In contrast, the 2nd, 6th and 7th circuits have recognized LGBTQ protections.

In Zarda v. Altitude Express, Inc., 883 F.3d 100, 131-32 (2d. Cir. 2018), the court held that “sexual orientation discrimination is a form of sex discrimination.”

In E.E.O.C. v. R.G. & G.R. Harris Funeral Homes, Inc., 884 F.3d 560, 574-75 (6th Cir. 2018), the court held that “discrimination on the basis of transgender and transitioning status violates Title VII.”

In Hively v. Ivy Tech Cmty. Coll., 853 F.3d 339, 345 (7th Cir. 2017), the court articulated the test for sex discrimination: whether, if the plaintiff were of the opposite sex and everything else remained the same (i.e., if the plaintiff were a man married to a woman instead of a woman married to a woman), would the employment outcome have been the same? If the answer is no, according to the 7th Circuit, then the plaintiff has stated a sex discrimination claim.

The U.S. Supreme Court is expected to resolve this discrepancy when it hears Bostock, Zarda and Harris Funeral Homes during the next session. It granted certiorari in these cases in April.

Federal legislation

Meanwhile, federal legislation on the issue is pending. In May, the U.S. House of Representatives passed the Equality Act. If enacted, the bill would prohibit discrimination based on sex, sexual orientation and gender identity in employment and other areas of federal law.

Although the Senate is not expected to pass the bill, for now its fate remains uncertain.

Conclusion

Given the current uncertainty of the law, employers may decide to err on the side of over-inclusion when defining protected classes in their equal opportunity and anti-harassment policies, and prohibit discrimination and harassment based on:

race, color, religion, sex (including pregnancy, childbirth and related conditions), sex stereotyping, gender, gender identity, gender expression, national origin, age, disability, ancestry, medical condition, marital status, familial status, military or veteran status, citizenship status, sexual orientation, genetic information, or any other status protected by law.

Employers should consider reviewing their policies on an annual basis, particularly if they operate nationwide.

Lynn A. Kappelman is a partner in the Boston office of Seyfarth Shaw. Her practice focuses in the area of labor and employment litigation. Renate M. Walker and Hillary J. Massey are associates in Seyfarth’s labor and employment department.

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