Is the Trump administration signaling no employment protection based on sexual orientation?
Russell Gray, Baker Donelson
Would you be surprised to learn that a conflict exists within the Trump administration? I didn't think so.
New questions about the Trump administration's position on gay rights and employment discrimination have arisen lately. That's the result of the U.S. Department of Justice recently taking the position in a key pending case that Title VII of the Civil Rights Act of 1964 does not prohibit employment discrimination based on sexual orientation. Interestingly enough, the Equal Employment Opportunity Commission, which falls under the U.S. Department of Labor, took the opposite position in the same case approximately a month ago.
The disagreement, in large part, boils down to whether discrimination based on sexual orientation amounts to discrimination based on gender, which Title VII already prohibits by its plain terms. The debate involves a legal theory that sexual orientation discrimination derives from impermissible gender stereotypes.
For example, proponents of the position that Title VII prohibits sexual orientation discrimination contend that a company that fires a male because he is gay actually fires that male because he does not meet the company's stereotype of being a male, i.e., attracted to the opposite sex. Another legal theory provides that sexual orientation discrimination amounts to gender discrimination because the terminated employee would not have been terminated "but for" his or her gender – that is, for example, a homosexual male would not have been terminated if he were a female who was attracted to males.
So what does this internal disagreement within the Trump administration mean for the future of employment discrimination based on sexual orientation, and what must you know as an administrator? For now, it means more uncertainty and a decreasing chance that sexual orientation will become a protected class under federal law during the current administration. It certainly does not appear that the Trump administration is positioning itself to seek new or amended legislation prohibiting sexual orientation.
That became even more apparent when the president issued a tweet announcing a ban on transgender persons serving in the military on the same day that the DOJ filed its brief challenging protection for sexual orientation under Title VII.
It remains possible, however, perhaps even likely, that the issue of whether Title VII prohibits sexual orientation will reach the U.S. Supreme Court. If such issue reaches the Supreme Court, it appears based on the recent DOJ position that the Trump administration will side with those contending that Title VII does not prohibit sexual orientation discrimination. With that support, and a majority of justices who are more inclined to construe statutes based on a more narrow view of the plain text, the Supreme Court may be more likely not to conclude that Title VII prohibits discrimination based on sexual orientation. That remains to be seen, however.
What should long-term care employers do during this period of uncertainty? The short answer is to proceed with treating sexual orientation as a protected class. Some states and even local governments have already enacted laws prohibiting sexual orientation discrimination. Furthermore, an Obama-era Executive Order (No. 13672), which prohibits federal contractors from discriminating based on sexual orientation, remains in place even though President Trump rescinded a separate Executive Order (No. 13673), which, among other things, required those bidding on federal contracts to disclose prior violations of various federal employment laws and orders.
The best approach is to assume discrimination based on sexual orientation is prohibited.
Long-term care employers should also continue to ensure that they are basing any adverse employment action only on legitimate, nondiscriminatory reasons. They should be able to articulate that reason clearly and support it with sufficient proof such as through documents and testimony. Even though the doctrine of employment at will provides the default rule that an employer need not have a reason to terminate an employee, the best practice is to articulate and support a legitimate, nondiscriminatory reason for the termination so that the employer can demonstrate that illegal employment discrimination, whether based on race, gender, sexual orientation or some other protected class, was not a motive for the termination.
Russell Gray is a Baker Donelson shareholder, representing clients on a range of labor and employment matters, including wage and hour, drug testing, policy manuals, covenants not to compete, response to union activity, various employment forms, compliance advice and employment litigation.