Turns out, sexual harassment isn’t the only type of sex-based complaint employers are facing. LGBT-related workplace complaints are on the rise, but unlike with sexual harassment, the law isn’t nearly as clear. In fact, it varies extensively across state and federal courts, leaving many employers at a loss to understand their legal obligations. Let’s take a look at what restaurant owners need to know about sex-based discrimination in the workplace – what conduct is illegal and where.
1. It’s illegal to discriminate against a person on the basis of sex.
Title VII of the Civil Rights Act of 1964 is a federal law that prohibits employers from discriminating against employees on the basis of sex, race, color, national origin and religion. It generally applies to employers with 15 or more employees.
2. Not everyone agrees on what “sex” means.
The actual text of the law prohibits discrimination “because of” or “on the basis of” sex. Historically, “sex” has been interpreted as being synonymous with gender. More recently, there has been a push to interpret “sex” to include sexual orientation and gender identity as well.
3. The United States Supreme Court says that “sex” includes sexual stereotyping.
In 1989, the Supreme Court ruled that Title VII prohibits sexual stereotyping. Sexual stereotyping is discriminating against an employee because he or she does not dress, walk, talk, act or conform to what members of that employee’s gender typically do. It’s calling a male employee “pu—y” “princess” and “fa—ot” and saying that his use of towelettes instead of toilet paper is “kind of gay” and “feminine.” (EEOC v. Boh Bros. Construction Co). It’s denying a female employee a promotion because she “need[s] a course in charm school” to learn how to “walk…talk…and dress more femininely,” “have her hair styled” and “wear jewelry.” (Price Waterhouse v. Hopkins).
4. The Supremes have never ruled one way or another on whether “sex” also includes sexual orientation and gender identity discrimination.
This means that there is no definitive, nation-wide law on whether sexual orientation and gender identity discrimination are illegal. Until then, employers are bound by the interpretations of their federal district and appeals courts. Currently, the Second and Seventh Circuits are the only circuit courts to rule that Title VII covers discrimination based on sexual orientation.
The Equal Employment Opportunity Commission (EEOC) also says that “sex” includes all LGBT-related discrimination. While the EEOC does prosecute some cases (to the tune of $6.4 million in damages since 2013), it has limited precedential authority because it’s a federal agency, not a court of law.
5. States and cities have taken matters into their own hands.
Currently, about twenty-two states and the District of Columbia have laws expressly prohibiting employment discrimination on the basis of sexual orientation and/or gender identity. Some cities and counties have passed local ordinances along those same lines as well.
So, how exactly is a restaurant owner supposed to make sense of the conflicts in the law? Well in the immortal words of Ben Affleck in Boiler Room: Act as if. Act as if the anti-discrimination laws apply to you anyway because if they don’t now, they likely will at some point in the future. Statistics show that most Americans care about workplace equality, and with the recent Second and Seventh Circuit decisions, LGBT employment rights will most certainly be ripe for review by the Supremes in the near future.
Create a culture within your restaurant where employees are treated with respect and employment decisions are based primarily on a person’s ability to do the job. Put policies in place that promote equality and train your employees and supervisors on proper conduct. Most importantly, keep your finger on the pulse of your employees and put an immediate and effective stop to any type of harassment or discrimination. Remember that, as the employer, you are ultimately responsible for what you know or should know is happening in your workplace.