Most employers are familiar with the classes of people or characteristics that are protected from discrimination—race, color, religion, sex, national origin, age, citizenship, genetic information, and military status. But some of these categories have broadened in scope in recent years.
In particular, the definition of sex has been expanding significantly over the years through decisions by the Equal Opportunity Commission as well as through case law . EEOC decisions come about when an employee lodges a complaint against an employer and the EEOC hears the case itself, resulting in an Agency ruling that will inform future actions and decisions by the EEOC. Though the EEOC decisions are not law and there have been instances where courts disagree with the EEOC interpretation, it is best practice to comply with the EEOC interpretation to avoid potential EEOC challenges. Case law is created when courts make a ruling on an issue, such as the meaning of a word, and even though the law hasn’t been amended in the code or statutes to reflect the decision, the ruling has the weight it would have if were part of the law passed by the legislature.
The result of these decisions and rulings is that sex now effectively includes pregnancy, pregnancy-related disabilities, breastfeeding, sexual orientation, gender, and gender identity. Also of note: the Employment Non-Discrimination Act—a bill that has been debated in Congress for years—passed overwhelmingly in the Senate (but died in the House) in 2013; its passage, and the codification of non-discrimination based on sexual orientation and gender identity, is likely in the not-too-distant future.
Should you have any additional questions regarding this or other employee topics, contact CyQuest today!