For Employers

DISCLAIMER: The information below is in the course of being updated and will likely change given the U.S. Supreme Court's decision in the Bostock case regarding Title VII and employment discrimination based on sexual orientation and gender identity, as well as other recent developments. Please check back for updates, or contact Lambda Legal's Help Desk.

As an employer, how can I make my workplace supportive of employees who are LGBT or HIV-positive?

Among the most important things that you as an employer can do to make your workplace safer and more supportive of diversity are instituting nondiscrimination policies, diversity training and employee resource groups and contracting with a health insurance company that provides coverage for transition-related health care and domestic partners.

For more about what makes good company policy, click here.

Am I required to offer transition-related health care to my transgender employees if the care is deemed medically necessary by a doctor?

While this issue has not been widely litigated yet, the EEOC has ruled that discrimination based on an employee’s transgender status or his/her gender transition violates Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination based on race, color, religion, sex or national origin. Thus it’s illegal to discriminate by refusing to cover medically necessary care on the basis that it relates to a gender transition. There is a wide consensus in the medical and legal communities that plans with exclusions are outmoded and unfair that everyone should have access to care deemed medically necessary.

A growing number of private-sector employers—including major firms such as Nike, Microsoft and Google—are leading the way in this area by offering transgender-inclusive health care coverage as part of diversity initiatives.

There has been a flurry of change recently on the state level, with some states now requiring that health insurance companies cover transition-related care; some offering such coverage to Medicaid recipients; and some providing it for their own employees.

Medicare announced in 2014 that it would stop categorically excluding transition-related surgery. And the U.S. Office of Personnel Management, which is in charge of benefits for almost all federal employees, clarified that, beginning in 2015, it will remove its requirement that insurance companies exclude transition-related healthcare coverage.

For more about access to transition-related health care, click here.

For more information about transgender workplace rights, click here.

Am I required to provide special bathrooms for transgender employees?

No, and indeed you should not do that. Instead, you should simply support all your employees’ right to use the restroom that corresponds to their gender identity. The U.S. Occupational Safety and Health Administration (OSHA) forbids employers from placing "unreasonable" restrictions on restroom access. For example, by insisting that a transgender woman use the men’s room or a single-use bathroom, an employer would be both violating the employee's privacy by singling her out, and outing the person as transgender. If the workplace has “single occupancy” restrooms, the better course is to provide that option to every employee, thus providing increased privacy options for all employees.

For more information about restroom access rights, click here.

Am I required to pay for fertilization treatments for married lesbian employees who wish to have children?

Many health insurance policies exclude coverage of fertility treatment—and lesbians may be directly affected when infertility is defined as or measured by the inability to become pregnant from intercourse with a man. Your obligation as an employer is not entirely clear; however, courts have frowned on failures to offer healthcare that adversely affect women exclusively or predominantly. 

I just found out that one of my employees is living with HIV. Am I required to make sure there is no health risk to my other employees?

For almost every employer, the premise of this question is baseless and misleading. There are few, if any, occupational settings in which a person’s HIV status presents a significant risk to the health or safety of others. In any case, the federal Americans with Disabilities Act (ADA) generally requires employers to keep confidential any HIV-related information they collect—not to mention prohibiting employers from discriminating against people with HIV.

For more about HIV in the workplace, click here.

How does the federal Americans With Disabilities Act (ADA) protect workers living with HIV?

In addition to its direct prohibition against discrimination, the two features of the ADA that play an important role for people living with HIV are these:

1. Workplace confidentiality

2. The right to reasonable work accommodations that permit the employee to perform the essential duties of her or his job despite any minor limitations on what the person is able to do.

1. Workplace confidentiality

The ADA outlines specific rules about providing confidentiality and privacy for job applicants and employees with HIV:

  • Applicants do not have to disclose their HIV status to a prospective employer unless it affects their ability to perform the job.
  • Before making a job offer, an employer cannot test applicants for HIV.
  • Once an employer makes a “conditional offer” (one conditioned solely on passing a physical or medical exam), employers can require that a prospective employee take an HIV test, but only if a person’s HIV status is relevant to their ability to perform the job in question safely and the test is required uniformly of all persons considered for that position.
  • An employer can ask general questions about a prospective employee’s health prior to making a conditional offer of employment, but only if the questions are not likely to reveal a disability (i.e, an employer cannot ask what medications the applicant takes).  Furthermore, employers can’t use an employee’s answers to screen out people with disabilities unless the exclusion is based on inability to perform job-related functions even with a reasonable accommodation.
  • After an employee is hired, an employer can usually only ask questions about disability or health if the inquiry is “job-related and consistent with business necessity.”
  • All information and records collected by an employer about an applicant’s or employee’s medical condition must be kept confidential by the employer.

2. Reasonable work accommodations

Another useful federal safeguard for employees living with HIV is the right to reasonable accommodations. Depending on the circumstances, an employer’s reasonable accommodations could include approving a flexible schedule, modifying the non-essential job duties, or agreeing to other adjustments that allow a disabled employee, including one living with HIV, to perform the essential functions of a job.

Under the ADA, whether an accommodation is “reasonable” and must be provided depends on the specific job, the extent of the employee’s needs and the employer’s size. An employer has the right to ask for information to make sure the employee is disabled and in need of reasonable accommodations. However, it may be possible for a medical professional to establish the need for an accommodation without revealing a particular diagnosis, such as HIV. An employer need not provide an accommodation that is overly expensive or too administratively difficult.

Click here for more information about how the ADA covers employees with HIV.

Do immigrants who work for me have the right to protest anti-LGBT or anti-HIV discrimination?

Yes, immigrants—whether documented or undocumented—have the same rights to fair treatment at work as other employees, as well as the right to protest, report and fight workplace discrimination. The U.S. Equal Employment Opportunity Commission (EEOC), the federal agency that investigates workplace violations, is not allowed to consider citizenship status when investigating and taking action against employers who discriminate. And federal immigration officials have voiced support for that policy.

For more information about immigrant rights in the workplace, click here.

What laws protect my employees from being discriminated against in the workplace for being LGBT or living with HIV?

A mixture of federal, state, and local laws explicitly protect LGBT people and people with HIV; federal and state bans on sex discrimination provide additional less explicit protection; and there is also a range of more general workplace-related laws that may be useful:

Federal antidiscrimination laws

In the private sector: There are federal laws in place that protect people living with HIV from discrimination in any workplace with 15 or more employees (see “How does the federal Americans With Disabilities Act (ADA) protect HIV-positive workers?”).

There is currently no federal statute that uses the terms “sexual orientation” and “gender identity” to describe prohibited discrimination in private-sector (nongovernment) jobs. However, President Obama has issued executive orders using those terms to clarify that discrimination against LGBT people by federal contractors is not permitted. The Employment Non-Discrimination Act (ENDA), a bill that has been pending in Congress for many years, also uses those explicit terms to describe prohibited discrimination by employers with 15 or more employees. The Senate passed a version of ENDA in the fall of 2013 with special treatment for religiously affiliated employers that was even broader than the already overbroad exemption in the bill since 2007. Because ENDA would permit so much discrimination against LGBT workers who are not engaged in religious activity, services or teaching, Lambda Legal and other LGBT groups have withdrawn support for that bill. They have called for ENDA simply to keep the longstanding Title VII religious exemption, which allows religious entities to favor others of the same religion, but prohibits discrimination on the other enumerated bases (race, color, sex, and national origin, expanded to include sexual orientation and gender identity). 

Lesbian, gay and bisexual (LGB) employees may invoke Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination based on race, color, religion, sex or national origin. While the intent behind the sex discrimination provision may have been to lift women up to a level playing field in the workplace, the language of the statute is triggered whenever an applicant or employee endures certain mistreatment that wouldn’t have happened had s/he not been that gender. (To have a claim, however there has to be an adverse employment action or hostile work environment.) 

Recent legal developments reflect a trend towards a growing recognition that sexual orientation discrimination should be covered by the ban on sex discrimination in Title VII. The EEOC takes this position and has issued decisions in favor of LGB employees fired for marrying a same-sex spouse or treated adversely due to failure to conform to gender stereotypes. In federal court litigation, Lambda Legal has argued in an amicus brief that Title VII’s ban on discrimination based on sex and religion protected Libraryof Congress employee Peter TerVeer when he was driven out of his job after his boss found out he is gay. In March 2014, the federal court in the District of Columbia accepted those arguments. Lambda Legal has presented similar Title VII arguments on behalf of workers denied equal family benefits for a same-sex spouse when different-sex spouses receive health coverage.  Similarly, in a case in Seattle, a federal court held that Michael Hall had a case for Title VII discrimination based on his sex, because as a male who married a male, he was treated differently in comparison to his female coworkers who also married males.

Private companies that seek and receive contracts to perform work for the federal government are governed by nondiscrimination rules. These include President Obama’s Executive Order 13672, which forbids discrimination based on sexual orientation or gender identity against employees of federal contractors, as well as federal statutory law prohibiting discrimination against people living with HIV. Nonprofit organizations that are not religiously affiliated are subject to these same rules. Religiously affiliated nonprofits receiving federal contracts currently are permitted to discriminate in specified ways due to an executive order and legal analysis put in place during the Bush administration.

If you have a contract to perform work for the federal government, employees who believe they have been subjected to sexual orientation or gender identity discrimination may be entitled to file a complaint with the Office of Federal Contract Compliance Programs within the U.S. Department of Labor.  Such a complaint can result in an investigation into your company for systematic problems, which may require to change practices or even to lose the contract. However, the complaint process is not designed to provide individual workers a remedy for having been mistreated. Individual complaints usually are referred to the EEOC, which will investigate complaints by LGBT people as potential sex discrimination violations and complaints about HIV bias as potential disability discrimination violations.

In the public sector: Public employees at the federal, state and local level enjoy certain federal constitutional protections against discrimination. These include the U.S. Constitution’s Equal Protection Clause of the Fourteenth Amendment, which prohibits the government (and government employers) from purposely discriminating against someone without justification. Public employees have also relied on the U.S. Constitution’s First Amendment right to free speech in order to protect the right to come out publicly. And Lambda Legal has successfully used the First Amendment to defend the right of teachers to discuss LGBT issues in the classroom and the rights of public employees to associate with gay men and lesbians.

Lesbian, gay and bisexual federal employees also are protected against discrimination by Executive Order 11478, as was amended by President Obama’s 2014 Executive Order 13672, which made explicit protections against gender identity discrimination. These Orders permit employees to file complaints of discrimination with the agency for which the employees work, but does not permit filing claims with the EEOC or in court, or offer other ways to pursue the usual remedies for workplace discrimination.

Title VII, the federal employment nondiscrimination law, applies to public employment as well as private-sector employment and forbids discrimination based on sex. This has been interpreted to cover discrimination based on gender identity or gender stereotypes, as well as sexual harassment. The EEOC and some courts have begun to recognize that adverse treatment due to one’s sex in relation to the sex of one’s spouse or partner also is sex discrimination

State and local laws

A number of cities, counties and states have passed laws that can help protect LGBT people and people living with HIV. Unlike the proposed federal ENDA bill, which only would address employment discrimination, many of the state, city and county laws encompass a wider range of protections, including housing and public accommodations. (Public accommodations are non-governmental entities that offer goods or services to the general public, whether independently or through facilities such as restaurants, retail stores, private schools, doctors’ offices, homeless shelters and day care centers, among others.) To find out if your state has laws prohibiting discrimination based on sexual orientation and gender identity or expression, click here.

Here is some information about state nondiscrimination laws:

  • While federal discrimination law applies only to employers with 15 or more employees, state laws generally cover smaller employers.
  • Many of these state provisions also explicitly cover perceived sexual orientation and gender identity. This means that people discriminated against because others see them as lesbian, gay, bisexual or transgender can make a valid legal claim under the state law, whether or not they actually are LGBT or are “out” about their true identity. Under the federal employment nondiscrimination law, Title VII, some federal courts have decided that employees are protected only against mistreatment because of their actual race, sex, religion or national origin. Other courts have recognized that Title VII forbids an employer’s anti-Semitic discrimination when that employer rejects an applicant mistakenly seen as being Jewish, but who actually isn’t.
  • There are also state and local laws that protect political activity or expression, including coming out. Some states and localities prohibit employers from discriminating against employees based on their lawful actions outside of work, so this can cover LGBT employees as well.
  • Some states and municipalities have prohibitions against marital status discrimination that may cover employees who are trying to obtain recognition of their same-sex relationships.
  • State nondiscrimination laws historically have not helped in requiring employers to provide equal benefits to employees. This is because a complicated federal statute shields covered benefit plans from attacks under state law, unless that basis appears in federal law, and “marital status” and “sexual orientation” are not listed in Title VII.  But many companies have at least realized quickly that all spouses should receive the same benefits, and those that have dragged behind have had to contend with Lambda Legal in court. Some state and local government entities have worked to treat their own employees fairly, making equal family benefits available to domestic partners and same-sex spouses of their public employees. Some also require employers that contract with state or local government to offer the same family benefits to employees with a domestic partner or same-sex spouse as the employer offers to workers with a different-sex spouse.
  • Many states prohibit disability discrimination; some states expressly prohibit discrimination against anyone living with HIV. In addition, some cities offer specific protections for workers living with HIV. Often these laws provide greater protection for people living with HIV than the federal protections provided by the Americans with Disabilities Act and the Rehabilitation Act.
  • All state laws have some exceptions. For example, religiously affiliated employers sometimes are treated differently by laws that prohibit discrimination against LGBT people (although publicly funded religious organizations often agree to comply with nondiscrimination rules as a condition of receiving taxpayer money). Exemptions also frequently apply for discrimination against domestic workers and employees in various categories of nonprofit or tax-exempt organizations.

Other laws that may protect your employees

If your employees live in an area without explicit legal protections for LGBT employees, they may have other legal avenues to protect themselves or respond to unfair treatment in the workplace:

  • If they have a collective bargaining agreement protecting them from discrimination based on sexual orientation or gender identity and expression, or just preventing them from being fired except “for cause,” then they have legal protections under labor or contract law.
  • They may have other avenues of legal recourse because some forms of discrimination may violate state codes of professional conduct or licensing rules.
  • Certain tort and common law theories, such as infliction of emotional distress, defamation, breach of the covenant of good faith and fair dealing, wrongful termination in violation of public policy and interference with contract or prospective business advantage, may also protect your employees.
  • An employee suffering severe harassment on the job may be able to seek compensation for emotional injuries through workers’ compensation.

FOR MORE INFORMATION: Contact our Help Desk if you feel you have experienced discrimination.