LGBT workplace protections may be strengthened

| Jan 27, 2021 | Workplace discrimination |

LGBT rights had a mixed record during the last few years. A victory in the U.S. Supreme Court concerning Title VII of the Civil Rights Act of 1964 was followed by the issuance of a restricted interpretation of this ruling and Title VII protections by the U.S. Department of Justice. LGBT rights and protections against employment discrimination were strengthened on Jan. 20, however, through a presidential executive order requiring federal agencies to conduct a review of their powers under Title VII.

Mixed success

In 2020, the US Supreme Court ruled that employment discrimination based on the gender’s identity or sexual orientation violated Title VII. This decision resolved conflicting federal appellate court rulings on this issue.

But the U.S. Department of Justice argued that Title VII contained protections based on the ordinary meaning of sex which did not include sexual orientation or gender identity. On Jan. 17, months after the Supreme Court’s decision and three days before the presidential inauguration, the federal government issued a memorandum restricting the extent of the Supreme Court’s ruling.

Executive order

The Jan. 20 executive order, issued under the new administration, essentially rejects the previously issued memorandum. That earlier memorandum was also removed from the Justice Department website on Jan. 21.

The executive order requires that all federal agencies review all their existing orders, regulations, policies, guidance materials that were issued or administered under Title VII and any regulations prohibiting sex discrimination. The purpose of this directive is to prevent and fight the discrimination that was reviewed by the Supreme Court in its ruling issued last year.

Federal agencies must consider whether additional actions are needed to comply with the executive order which will include addressing overlapping forms of discrimination. Agencies will consult with the U.S. Attorney General and develop plans to implement this order within 100 days.

Future enforcement

Attorneys anticipate that the federal government will generally favor employees over employers. There may be increased activity at the U.S. Equal Employment Opportunity Commission and the Occupational Safety and Health Administration. The National Labor Relations Board will ease unionization and act more in employees’ favor.

An attorney can help workers know their legal rights against discrimination under federal and Kentucky laws. Lawyers can also pursue legal actions and seek damages and relief against discriminatory practices.