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Employment Protections for LGBTQ Workers

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Brandon Grysko, Esq.

Employers should be aware of recent legal changes pertaining to Lesbian, Gay, Bisexual, Transgendered, and Questioning (LGBTQ) workers. Although there is major political controversy surrounding the scope of existing employment laws, employers need to be aware that many courts and administrative agencies consider gender identity and sexual orientation to be protected classifications under current sex-discrimination laws.

Federal and state civil rights laws protect employees from sex-based discrimination. This does not explicitly protect LGBTQ workers. Some advocates argue that gender identity and sexual orientation are "sex-based" traits. This view has been adopted by the Equal Employment Opportunity Commission (EEOC), the Michigan Department of Civil Rights (MDCR), and some courts. It's important to note that the MDCR and the EEOC are branches of the government that actually investigate and enforce allegations of workplace sex discrimination.

Although the EEOC and the MDCR are currently enforcing employment protections for LGBTQ workers, the law is in a state of uncertainty. The Supreme Court of the United States (SCOTUS) recently heard oral arguments for LGBTQ employment discrimination cases. In one of those cases, a Michigan funeral home terminated an employee who actively expressed a desire to transition from male to female. See R.G. & G.R. Harris Funeral Homes Inc. v Equal Employment Opportunity Commission, 884 F.3d 560 (CA 6 2018). In another case, a male skydiving instructor was terminated after telling a female client that he was gay. See Altitude Express Inc., v Zarda, 883 F.3d 100 (CA 2 2018). The Supreme Court is expected to answer the question: do current employment discrimination laws apply to gender identity and sexual orientation?

It could be months before the Supreme Court provides an answer. Until SCOTUS rules otherwise, agencies and federal courts in the Sixth Circuit (which includes Michigan) are all enforcing LGBTQ rights. A labor and employment attorney can review your employee handbook and policies to make sure your business is protected from potential lawsuits.

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