June 22, 2020

The U.S. Supreme Court’s monumental ruling last week that LGBTQ employees are protected by federal civil rights laws was one culmination of decades of hard-fought advocacy by the LGBTQ community. 

The ruling affirms the rights of gay and transgender employees under Title VII of the Civil Rights Act of 1964, the federal employment law that bars discrimination on the basis of traits including race, sex and national origin.

As the ruling opens up new mechanisms of recourse, it may also highlight the often complex bureaucratic and legal machinery facing employees who seek to file complaints. 

In other words, what do you do if you think you’ve faced discrimination because of your sexual orientation or gender identity? It’s not a matter of heading straight to the courthouse. 

For one thing, claims under Title VII would have to be first filed as a “charge of discrimination” with the U.S. Equal Employment Opportunity Commission, the federal agency overseeing employment discrimination issues, or a state counterpart. This is because Title VII requires employees to show that they’ve exhausted their administrative channels for seeking remedy.  

With the EEOC and state agencies, too, there are more rules that set deadlines for filing such charges — a number of states require such charges to be filed within 180 days of the discriminatory action, while others impose a 300-day deadline. 

“If you face an adverse employment action — you’re fired, you’re passed over for a promotion, you find out your pay is less than somebody else’s — and you believe that it has to do with your sexual orientation or gender identity, you have a 180, or up to 300 days, to file that charge of discrimination,” said Kalpana Kotagal, a partner at Cohen Milstein Sellers & Toll PLLC and a member of the firm’s Civil Rights & Employment practice group, who represents retail employees.

“And 180 days, you know, it’s not very much time. It can go by before you realize, and all of a sudden, it settles on you that you’ve faced discrimination and you look up your state, and it’s like, ‘Oh no, I missed my window.’” 

Before the Supreme Court’s ruling, the practical hurdles within the recourse infrastructure, particularly those imposed by state and local laws, were even more significant.

Until this point, it was largely up to state and local jurisdictions to extend civil rights laws to LGBTQ employees. Only some 22 states and Washington, D.C., had barred discrimination based on sexual orientation and gender identity, while a few other states offered more limited version of such protections, according to the Human Rights Campaign, an LGBTQ civil rights advocacy group.

The complete article can be viewed here.