Employment non-discrimination laws protect LGBT individuals from being unfairly discriminated against in the workplace by private employers. Unfortunately, not all states provide these protections. Alabama, for example, does not have any statewide laws prohibiting employment discrimination based on sexual orientation or gender identity. While there are local ordinances in Birmingham and Montevallo which aim to provide such protections, they are made largely ineffective by the Commerce Protections Act which prohibits cities and counties from extending discrimination protections to those classes which are not included in state law. Further, the 11th Circuit does not recognize sexual orientation or gender identity as protected classes under Title VII.

Late last year, for example, the 11th Circuit found that “discharge for homosexuality is not prohibited under Title VII” in Evans v. Georgia Regional Hospital. In this case, Jameka Evans, a lesbian, alleged that her employer had discriminated against her on the basis of her sexual orientation when she was given less desirable shifts, targeted for termination, skipped over for promotions she was qualified for, and subjected to a hostile work environment. Under current 11th Circuit precedent, a person is not permitted to file an employment discrimination claim based only on the fact that their employer was prejudiced against homosexual employees. However, the 11th Circuit Court held that discrimination based on gender non-conformity is actionable, and while Evan’s did not plead sufficient facts to create a plausible inference that her decision to present herself in more masculine manner led to the adverse employment actions she suffered, she could amend her complaint.

This loophole of pleading gender non-conformity has been used as a roundabout means by which to extend protections against discrimination to the LGBT community in the 11th Circuit. Under Title VII of the Civil Rights Act of 1964, discrimination is prohibited on the basis of sex. While the 11th Circuit Court of Appeals has held that this does not include discrimination on the basis of sexual orientation, discrimination against a plaintiff because they fail to act in accordance with socially accepted gender roles is included. This is the gender non-conformity protection. In 2011, this interpretation was actually applied to discrimination against transgender individuals in Glenn v. Brumby. Because the ultimate gender stereotype is heterosexual attraction, attorneys have argued that discrimination on the basis of sexual orientation and gender identity is necessarily discrimination on the basis of traditional gender stereotypes and must be protected against as such.

Our Birmingham, Alabama employment law firm has handled a number of discrimination cases throughout the State of Alabama. If you feel you may have suffered discrimination in the workplace on the basis of your sexual orientation or gender identity please contact us at (205) 588-0699 for a free consultation to discuss your potential case.

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