UPDATE: On 31 January the White House issued a press release that stated "President Donald J. Trump Will Continue to Enforce Executive Order Protecting the Rights of the LGBTQ Community in the Workplace. President Donald J. Trump is determined to protect the rights of all Americans, including the LGBTQ community. President Trump continues to be respectful and supportive of LGBTQ rights, just as he was throughout the election. The President is proud to have been the first ever GOP nominee to mention the LGBTQ community in his nomination acceptance speech, pledging then to protect the community from violence and oppression. The executive order signed in 2014, which protects employees from anti-LGBTQ workplace discrimination while working for federal contractors, will remain intact at the direction of President Donald J. Trump."

In 2014, the Equal Employment Opportunity Commission (EEOC) took on the case of Aimee (formerly Anthony) Stephens, who R.G. &. G.R. Harris Funeral Homes fired after Stephens announced that he would be transitioning to she. The funeral home had a dress code that required women to wear "skirt-suits", and Stephens announced that after she returned from vacation, she would be switching to female clothes.

Stephens' case was thrown out of court in 2016. The court ruled that Stephens didn't a claim because "like sexual orientation, transgender or transsexual status is currently not a protected class under Title VII." The court also relied on the Religious Freedom Restoration Act (RFRA), because the funeral home owner, Thomas Rost, was entitled to his religious liberty, and Stephen's transition violated that.

The Washington Post quoted EEOC spokesman Justine Lisser as saying "We are disappointed with the decision and are reviewing the next steps." Those next steps involved appealing the decision.

However, the next filing date passed without the EEOC filing their briefs, and instead asking for an extension because of "Administration-related changes at the Commission." Additionally, reports that the ACLU filed a request to intervene, which, if granted, would allow them to take over the case. Mark Joseph Stern at Slate (who broke this story), writes:

Slate has learned that the EEOC may be planning to withdraw from this case. Moreover, under Lipnic, the agency may no longer pursue cases of anti-LGBTQ discrimination with the vigor that it did under Democratic chairs--although it will move forward with some LGBTQ-related discrimination cases, at least for now. The five-member commission has one vacancy, which Trump will soon fill.

The EEOC responded to Slate by saying that the EEOC has not "formally withdrawn from the litigation" but declined to confirm or deny continuation of the case. The EEOC is a federal agency tasked with administering and enforcing civil rights laws against workplace discrimination.

What does this mean for the rest of the business world? Maybe not much. Employment Attorney, Eric B. Meyer points out that the EEOC is actively pursuing other LGBTQ employment cases. Additionally, Meyer says that this a battle that is headed for the Supreme Court as the various circuits have disagreed on whether title VII's protection against gender discrimination applies to LGBTQ cases.

Additionally, your state or local government may have laws already in place that prohibit discrimination, regardless of what the federal courts say.

Even if the Supreme Court ends up confirming that Title VII doesn't protect against LGBTQ discrimination, your business can have policies that prohibit discrimination. Make sure those policies are clear to your employees and that your managers are trained. Many companies already have these policies in place. If yours doesn't, get it in writing now.

Published on: Jan 30, 2017