LGBT Issues

  1. The law on LGBT (lesbian, gay, bisexual, and transgender) issues in general has developed rapidly on a federal level - despite the lack of specific mention of such groups in employment discrimination statutes, federal courts and agencies have been issuing new guidelines for LGBT employees (see below).

  2. Texas state law (Chapter 21 of the Texas Labor Code) does not have any provision directly addressing these issues. However, since most Texas employers are also covered by federal employment laws, it is important to be aware of how federal agencies are interpreting the statutes they enforce.

  3. Some Texas cities have adopted local ordinances prohibiting LGBT discrimination in private employment (Austin, Dallas, Fort Worth, Plano).

  4. Foundational ruling: U.S. Supreme Court case of Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) - the Court held that a female manager had been illegally discriminated against due to her failure to conform to established gender stereotypes.

  5. Similar cases extended the "non-conformance with gender stereotypes" concept to same-sex harassment and LGBT protection: Oncale v. Sundowner Offshore Services, 523 U.S. 75 (1998); Schwenk v. Hartford, 204 F.3d 1187 (9th Cir. 2000); Smith v. City of Salem, Ohio, 378 F.3d 566 (6th Cir.2004); Kastl v. Maricopa Co. Cmty. Coll. Dist., 325 Fed.Appx. 492 (9th Cir. 2009); Glenn v. Brumby, 663 F.3d 1312 (11th Cir. 2011); EEOC v Boh Brothers Const. Co., L.L.C., 731 F.3d 444 (5th Cir. 2013); Hively v. Ivy Tech Community College, 853 F.3d 339 (7th Cir. 2017); Schroer v. Billington, 577 F.Supp.2d 293 (D.D.C. 2008); see also Lopez v. River Oaks Imaging & Diagnostic Group, Inc., 542 F.Supp.2d 653 (S.D.Tex.2008), and Creed v. Family Express Corp., No. 3:06-CV-465RM, 2009 WL 35237 (N.D. Ind. Jan. 5, 2009).

  6. The U.S. Supreme Court held in 2020 that employment discrimination based on sexual orientation or gender identity violates Title VII of the Civil Rights Act of 1964: Bostock v. Clayton County, 140 S.Ct. 1731 (2020) - discrimination based on a person's sexual orientation or gender identity is discrimination based on "sex".

  7. Federal agencies now apply the Bostock ruling in the administration of all federal contracts and grants.

  8. Based on the Bostock ruling, a hostile work environment based on an employee's sexual orientation or gender identity violates the law just as much as a hostile work environment based on gender, race, religion, national origin, age, or disability. Employers should contact experienced employment law counsel if such an issue arises in the workplace.

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