Over the past two years, several important legal developments have occurred impacting South Dakota's lesbian, gay, bisexual, and transgender (LGBT) employees and their employers. And regardless of an employer's personal beliefs, it is clear that these changes have resulted in a plethora of LGBT issues in the workplace. At this time, the legal rights of LGBT employees is best described as a "patchwork."
First, federal law regarding LGBT employees has been changing and will undoubtedly continue to change. The Employment Nondiscrimination Act (ENDA), which is intended to extend workplace protections to LGBT employees, has not been enacted, despite numerous attempts. Based upon the current environement in Congress, it is unlikely that the ENDA will be approved anytime soon.
Second, there have been efforts by federal agencies to include LGBT individuals under Title VII of the Civil Rights Act of 1964 (Title VII). However the use of Title VII has been somewhat problematic because it does not specifically include either sexual orientation or gender identity as a "protected class." However, the Equal Employment Opportunity Commission (EEOC) appears to believe that Title VII includes LGBT individuals. As a result of its position, protection under Title VII is being litigated in cases filed by the EEOC and other advocacy gorups
Third, LGBT employees of federal contractors (for contracts entered into after December 3, 2014) now have enhanced protections. In July 2014, President Obama signed Executive Order 13672 - prohibiting federal contractors from discriminating based on sexual orientation and gender identity. In December 2014, the Department of Labor (DOL) announced the final rule implementing this Executive Order. The DOL recognizes a legal action for LGBT individuals - "Sex-based stereotyping may have even more severe consequences for transgender, lesbian, gay and bisexual applicants and employees, many of whom report that they have experienced discrimination in the workplace.”
Recently, some state and local governments have taken an aggressive approach and started passing LGBT protections, as well as gender identity and expression protections. Oregon, Washington, California, Nevada, Utah, Colorado, New Mexico, Minnesota, Iowa, Illinois, Maine, Vermont, Massachusetts, Connecticut, Rhode Island, New Jersey, Maryland, Hawaii and Delaware, as well as the District of Columbia, have passed laws to protect private and public sector employees from discrimination based on sexual orientation, gender identity, and/or gender expression. Wisconsin, New York and New Hampshire protect employees based on sexual orientation (but not gender identity).
In states that do not provide these protections (like South Dakota) many private employers are voluntarily extending protections to their LGBT employees. For instance, a large majority of Fortune 500 companies now prohibit discrimination based on sexual orientation. A majority of Fortune 500 also prohibit discrimination based on gender identity.
Once again, no matter what a South Dakota employer's view is on these issues - awareness and compliance in this rapidly-evolving area is imperative.