Following the United States Supreme Court determination that federal law prohibiting employment discrimination “because of … sex” (Title VII) necessarily prohibits employment discrimination against LGBT employees, it was unclear how Arizona would interpret Arizona’s Civil Rights Act that similarly protects workers from discrimination “because of … sex….” Historically, Arizona courts have looked to interpretations of Title VII to interpret Arizona’s law. In a recent court filing, Arizona’s Attorney General (AZAG) stated Arizona law protects LGBT workers from employment discrimination. As a result, workers who believe they have been discriminated against because of their sexual orientation or transgender status can file claims based on federal and state law.
The AZAG is charged with enforcing Arizona’s Civil Rights Act and oversees the administrative process through which employees initially bring claims of discrimination against their employer. Once filed, the AZAG’s Civil Rights Division investigates the discrimination claims and, in some cases, brings a lawsuit against an employer. The AZAG’s court filing announced that, “[i]n light of [the Supreme Court’s decision], the Division will now accept and review cases alleging employment discrimination because of sexual orientation or transgender status….”
It is possible the Arizona Legislature will step in and clarify or amend what Arizona’s prohibition of discrimination “because of … sex” means, excluding protections for LGBT workers. A few legislators already have stated their concern with the AZAG’s position, and Governor Ducey previously has stated his opposition to expanding Arizona’s laws to protect LGBT workers. Additionally, several bills in the Arizona Legislature seeking to explicitly include protection for LGBT workers have failed in recent years. Public opinion, however, has overwhelmingly supported anti-discrimination laws including LGBT workers.
Both Arizona’s Civil Rights Act and Title VII only apply to employers with at least 15 employees. Thus, these protections for LGBT workers do not generally apply to smaller employers. Arizona’s law, however, expands the prohibition against “sexual harassment” to all Arizona employers. Based on the recent United States Supreme Court case and the AZAG’s statement, harassment based on individual’s sexual orientation or transgender status is likely illegal under Arizona law.
Arizona employers should:
- Ensure their Non-Discrimination policies include LGBT as a protected characteristic;
- Give their updated policy to employees;
- Train supervisors on the updated policy; and
- Investigate and resolve all allegations of discrimination or harassment.
If the employment lawyers at Mesch Clark Rothschild can help you update your policies, develop training on the recent changes, or answer any questions, please let us know.
