Sexual Orientation and Gender Identity

Rob Wiley: My name is Rob Wiley and I'm speaking today with Austin Employment Lawyer, Colin Walsh about sexual orientation and gender identity discrimination. Now Colin, something that has changed very rapidly I think in terms of the law has been the way that the law treats gays, lesbians and transgender individuals. We've seen in the early 2000s the Supreme Court strike down the sodomy laws. Very recently we've seen marriage equality become the law of the land. What impact has there been in the workplace because of these changes in our laws?

Colin Walsh: Well you're right, this stuff has changed very rapidly. It's currently a priority for the EEOC, the Department of Justice has weighed in on the issue. But essentially what's happened is these people are protected under gender discrimination laws that exist already. So if you're being discriminated against because of your sexual orientation, because of your gender identity or because you're transgendered you may be protected by gender discrimination laws.

Rob Wiley: And I think this is something that we've seen is, is an evolution of gender discrimination in the law generally. Of course it was the Civil Rights Act of 1964 that prohibited discrimination based on gender but originally most of the lawsuits that you saw involved race and then it was a little bit after that that you started seeing more lawsuits targeting gender discrimination in the workplace. It wasn't until the 1980s that we had a Supreme Court case that said sexual harassment was gender discrimination. It wasn't until the late '90s that the Supreme Court weighed in and said same sex sexual harassment was going to be actionable. It wasn't until, I would say the 2000s that you started seeing courts of appeal saying that discrimination against transgendered individuals is going to be gender discrimination and now, we have seen the Justice Department and the EEOC both issue rulings essentially saying that discrimination against gays or lesbians is sex discrimination. So if someone believes that they are being discriminated against because of, of sexual orientation or gender identity what should they do?

Colin Walsh: Well they should contact an employment lawyer to discuss the pros and cons of moving forward and they need to be aware of the deadlines. You have 180 days to file a charge from the date of discrimination if you want to preserve your state law claims and 300 days to preserve your federal law claims.

Rob Wiley: And I think this is one of those areas where the federal government is currently ahead of the government of Texas and so I would probably be more interested in bringing this case in federal court but right here in Travis County there are actually additional protections for people on the basis of sexual orientation or gender identity. Is that true?

Colin Walsh: Yes, that is true. In fact many cities have specific ordinances that prohibit discrimination based on gender identity or sexual orientation.

Rob Wiley: And while an ordinance isn't as good as a statute passed by legislature or, passed by the congress and signed by the president it still gives you rights and it gives you a process that you can go through, to try and get relief. One of the things that we've seen a lot in the workplace right now is issues concerning bathrooms. And individuals who are transgender they would want to use the bathroom that they identify with what obligations would an employer have to allow a transgender employee to use the bathroom that they identify with?

Colin Walsh: I think an employer has a very strong obligation to allow that employee to do so. I think that would actually be fairly classic gender discrimination, to prohibit an employee from using the bathroom that they want, that they identify with.

Rob Wiley: Yes, I would think at a minimum, an employer is going to have to come up with some sort of accommodation. So if it is someone who is transgender and identifies as female that person should be allowed to use either the female bathroom or, to be given a gender neutral bathroom, that they can use. And of course depending on the workplace, the idea of male and female bathrooms and things like that may be somewhat, outdated anyway.

Colin Walsh: I would agree with that.

Rob Wiley: Thank you.

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