United States: The Second Obama Term: New Employment Protections For LGBT Individuals Possible

President Barack Obama's second term will likely bring new employment protections for lesbian, gay, bisexual, and transgender individuals.

President Barack Obama's election in 2008 ushered in a period of increased regulation of U.S. employers. The Equal Employment Opportunity Commission (EEOC or Commission) promulgated new employee-friendly guidance on the Americans with Disabilities Act (ADA), the Family and Medical Leave Act (FMLA), the Age Discrimination in Employment Act, and the use of background checks in employment decisions. As President Obama begins his second term, it is anticipated that this trend will continue, with more employee-friendly FMLA and ADA regulations. But perhaps one of the largest changes on the horizon—one that could have a dramatic impact on the EEOC's enforcement focus and lead to a significant uptick in civil litigation—is the potential addition of sexual orientation and gender identity to the list of categories protected by federal anti-discrimination laws.

Employment Non-Discrimination Act and EEOC Cases Under Title VII

Currently, 21 states and the District of Columbia prohibit employment discrimination on the basis of sexual orientation; 16 states and the District of Columbia also protect gender identity. However, federal law currently does not protect either category. Proposed legislation known as the Employment Non-Discrimination Act (ENDA) would change that, banning discrimination on the basis of both sexual orientation and gender identity. ENDA has percolated in Congress for years without much attention, but it has gained traction recently and is expected to be taken up again in 2013. Indeed, it appears that President Obama intends to push ENDA to the front of his agenda, calling in his recent inaugural address for lesbian, gay, bisexual, and transgender (LGBT) equality under the law and explicitly comparing the fight for LGBT rights to the historic battles for civil rights and women's equality. If the positive public response to the inaugural address is any indication, we can expect ENDA to gain momentum this year. But, even if ENDA does not pass right away, many advocates anticipate that President Obama will introduce some federal protection for LGBT workers by executive order, banning federal contractors from discriminating against employees on the basis of sexual orientation and gender identity. Many believe that such an executive order by President Obama would lay the groundwork for the passage of ENDA in the same way that President John F. Kennedy's 1961 executive order prohibiting race discrimination by federal contractors paved the way for the Civil Rights Act of 1964.

The passage of ENDA would alter the landscape of employment law, particularly in jurisdictions where sexual orientation and gender identity are not already protected categories under state law. ENDA would expand these protections nationwide and would give the EEOC jurisdiction to investigate, conciliate, and litigate on behalf of LGBT individuals with vigor. The EEOC has already forecast its focus on this population, listing the protection of LGBT employees as one of its target priorities for 2013-2016—with or without ENDA—by bootstrapping protection for sexual orientation and gender identity onto Title VII.1

To accomplish this goal, the EEOC has adopted a broad interpretation of Title VII's prohibition of discrimination on the basis of gender stereotypes. For example, in Veretto v. Donahoe,2 the EEOC concluded that Title VII prohibits harassment on the basis of sexual orientation where a complainant can show that the harassment occurred because of his or her failure to conform to conventional gender norms. In that case, Jason Veretto, a mail carrier in Connecticut, complained of verbal and physical harassment by a co-worker that escalated after Veretto announced in a local newspaper that he had married his male partner. The case was initially dismissed because sexual orientation is not a protected category under Title VII. On appeal, however, the EEOC held that Veretto had stated a Title VII claim because the alleged harassment was based upon Veretto's marriage to another man—conduct that was, in the eyes of the harassing co-worker, outside the boundaries of the stereotypical male gender role.

The EEOC relied upon the same reasoning in Macy v. Holder where the full Commission held that Title VII covered claims brought by a transgender woman who had been purportedly denied a job with the Bureau of Alcohol, Tobacco, Firearms and Explosives after the agency learned that she was in the process of transitioning from male to female.3 According to the EEOC, Title VII's prohibition against "gender stereotyping" protects individuals who fail to conform to gender-based expectations or norms. Discrimination against a male who is presenting as a female, the Commission reasoned, is a type of sex discrimination.

The EEOC's broad application of the "gender stereotyping" theory reflects a growing trend, as more and more plaintiffs around the country attempt to use the theory to transform what should be petty nuisances into actionable conduct. For example, a prison guard in Vermont brought a claim for sex-stereotyping discrimination after his supervisor criticized him for taking medical leave to recover from a groin injury. The supervisor commented, "Way to milk it buddy," and an inmate remarked, "Good luck making kids with that package." On a motion to dismiss, the U.S. District Court for the District of Vermont concluded that the two alleged comments were sufficient to state a claim for gender stereotyping since it was plausible that the remarks were motivated by a perception that the plaintiff had failed to conform to stereotyped expectations of masculinity.4 The increase in these "gender stereotyping" claims, coupled with the passage of ENDA, could lead to a substantial increase in litigation for many employers in the coming years.5

Even beyond ENDA, there may still be further changes relating to the employment of LGBT individuals in 2013 if the U.S. Supreme Court affirms the U.S. Court of Appeals for the Second Circuit's holding that the Defense of Marriage Act (DOMA) is unconstitutional.6 Currently, section 3 of DOMA provides that, for purposes of federal law, "marriage" means only a legal union between one man and one woman and that the term "spouse" refers only to a person of the opposite sex. If DOMA is overturned, however, the meaning of these terms would be broadened to include legally married same-sex couples. This would have a sweeping impact on employee benefit plans, requiring that same-sex spouses be given the same access as opposite-sex spouses to numerous benefits, including health plans, retirement and insurance plans, and family leave.

What Employers Can Do to Get Ready for These Changes

Given that the EEOC already has fashioned arguments out of existing law to protect LGBT persons in the workplace, even before the passage of ENDA and in keeping with its Strategic Enforcement Plan, employers should consider taking policy steps to manage and decrease associated risks.

Employers doing business in jurisdictions that already protect sexual orientation and/or gender identity should make certain that these categories are included in their anti-discrimination policies; even employers who operate outside these jurisdictions should consider taking this step. Likewise, employers around the country should now include "gender stereotyping," sexual orientation, and gender identity in their anti-harassment training programs and adopt appropriate prohibitions on gender-based jokes and anti-LGBT slurs, similar to those applied to other protected classes.


1 See U.S. Equal Employment Opportunity Commission Strategic Enforcement Plan FY 2013-2016 (Dec. 17, 2012), here; Macy v. Holder, No. 0120120821, 2012 WL 1435995 (U.S. Equal Emp't Opportunity Comm'n Apr. 20, 2012).

2. Veretto v. Donahoe, No. 0120110873, 2011 WL 2663401 (U.S. Equal Emp't Opportunity Comm'n July 1, 2011).

3. Macy v. Holder, No. 0120120821, 2012 WL 1435995 (U.S. Equal Emp't Opportunity Comm'n Apr. 20, 2012).

4. Davis v. Vermont Dep't of Corr., 868 F. Supp. 2d 313, 324-25 (D. Vt. 2012).

5. See, e.g., Sibilla v. Follett Corp., 2012 WL 1077655 (E.D.N.Y. Mar. 30, 2012) (female plaintiff alleged gender-stereotype discrimination because her employer purportedly assumed that she was unproductive and lazy because she was obese); Navedo v. Nalco Chemical, Inc., 848 F. Supp. 2d 171 (D. P.R. 2012) (male plaintiff alleged harassment based upon a gender stereotype because his employer criticized him for not drinking heavily and for failing to spend time socializing in bars).

6. See Windsor v. United States, 699 F.3d 169 (2012), cert. granted, 2012 WL 4009654 (Dec. 7, 2012).

Copyright 2013. Morgan, Lewis & Bockius LLP. All Rights Reserved.

This article is provided as a general informational service and it should not be construed as imparting legal advice on any specific matter.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
FisherBroyles LLP
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
FisherBroyles LLP
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions