LGBT Issues

  1. The law on sexual orientation and gender identity issues in general has developed rapidly on a federal level - despite the lack of specific mention of such groups in employment discrimination statutes, federal courts and agencies have been issuing new guidelines for LGBT employees (see below).

  2. Texas state law (Chapter 21 of the Texas Labor Code) does not have any provision directly addressing these issues, and for that reason, the state has no authority to investigate such complaints. However, since most Texas employers are also covered by federal employment discrimination laws if they have 15 or more employees, participate in federal contracts, or receive federal grants, it is important to be aware of how federal agencies are interpreting the statutes they enforce.

  3. Some Texas cities have in the past adopted local ordinances prohibiting LGBT discrimination in private employment (Austin, Dallas, Fort Worth, Plano). However, such ordinances were invalidated by a new Texas law enacted in 2023 (Section 1.005, Labor Code.)

  4. Foundational ruling under federal law: U.S. Supreme Court case of Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) - the Court held that a female manager had been illegally discriminated against due to her failure to conform to established gender stereotypes.

  5. Similar cases extended the "non-conformance with gender stereotypes" concept to same-sex harassment and LGBT protection: Oncale v. Sundowner Offshore Services, 523 U.S. 75 (1998); Schwenk v. Hartford, 204 F.3d 1187 (9th Cir. 2000); Smith v. City of Salem, Ohio, 378 F.3d 566 (6th Cir.2004); Kastl v. Maricopa Co. Cmty. Coll. Dist., 325 Fed.Appx. 492 (9th Cir. 2009); Glenn v. Brumby, 663 F.3d 1312 (11th Cir. 2011); EEOC v Boh Brothers Const. Co., L.L.C., 731 F.3d 444 (5th Cir. 2013); Hively v. Ivy Tech Community College, 853 F.3d 339 (7th Cir. 2017); Schroer v. Billington, 577 F.Supp.2d 293 (D.D.C. 2008); see also Lopez v. River Oaks Imaging & Diagnostic Group, Inc., 542 F.Supp.2d 653 (S.D.Tex. 2008), and Creed v. Family Express Corp., No. 3:06-CV-465RM, 2009 WL 35237 (N.D. Ind. Jan. 5, 2009).

  6. The U.S. Supreme Court held in 2020 that employment discrimination based on sexual orientation or gender identity violates Title VII of the Civil Rights Act of 1964: Bostock v. Clayton County, 140 S.Ct. 1731 (2020) - discrimination based on a person's sexual orientation or gender identity is discrimination based on "sex". However, not all courts agree on the reach of that ruling - see Bear Creek Bible Church v. EEOC, 2021 U.S. Dist. LEXIS 210139 (D.C.N.D.-Fort Worth, October 31, 2021) (which addresses the inapplicability of the Bostock holding to religious organizations).

  7. Federal agencies now apply the Bostock ruling in the administration of all federal contracts and grants.

  8. Based on the Bostock ruling, a hostile work environment based on an employee's sexual orientation or gender identity violates the federal law just as much as a hostile work environment based on gender, race, religion, national origin, age, or disability. Employers should contact experienced employment law counsel if such an issue arises in the workplace.

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