Jaburg Wilk


Is it Illegal for Arizona Employers to Discriminate Against Transgender or Gay Employees?

Categories: Employment, Article

LGBT employee discrimination

Title VII of the Civil Rights Act of 1964 ("Title VII") and the Arizona Civil Rights Act prohibit employers from discriminating against employees because of their gender. While neither law expressly prohibits discrimination based on gender identity or sexual orientation, the United States Supreme Court has held that Title VII prohibits discrimination based on sexual stereotyping. A gender stereotype is defined as general view, preconception, or image of attributes and characteristics of men and women.

Applying this same rationale, other courts have found that employers violated Title VII when they discriminated against a transgender or gay employee based on his or her failure to conform to gender stereotypes. For example, courts have often found that it is unlawful to discriminate against a gay male employee who acts in a traditionally feminine manner because of the way he talks, dresses, or acts.

Employers should ensure that their transgender or gay employees are not subjected to offensive or inappropriate comments. If an employer fails to take prompt remedial action to stop such comments from being made, it faces potentially serious consequences. It is recommended that employers have and follow a harassment policy.

Additionally, employers must also be careful not to take any adverse actions against an employee because they are gay or transgender. If an employer intends to terminate a gay or transgender employee, it should carefully document why that employee is being terminated and be prepared to provide that documentation to the Equal Employment Opportunity Commission if the employee files a charge of discrimination. The employer may also want to consider placing the employee on a performance improvement plan before terminating the employee, so that the grounds for termination are well supported and documented.

The Arizona LGBT community continues to obtain increasing protections and equality under the law. The cities of Flagstaff, Phoenix, Scottsdale, Tucson, and Tempe have already enacted laws that specifically prohibit discrimination against employees because of their gender identity and sexual orientation. In 2003, former Arizona Governor Janet Napolitano signed an executive that made it illegal for Arizona state agencies to discriminate against their employees based on their sexual orientation.

The best employment practice is to treat all employees equally under Title VII including gender identity or sexual orientation, have defined harassment policies and base employment decisions on the individual employee's performance.

About the authors: Kraig J. Marton heads the employment law department at the Phoenix law firm of Jaburg & Wilk. He assists employers and employees in complying with the many laws affecting employers.

Jeffrey E. Silence is an attorney at Jaburg Wilk. He focuses his practice in employment law and represents both employers and employees to navigate these and other difficult issues.