Expanding the definition of protected class.

Byline: Lynn A. Kappelman, Renate M. Walker and Hillary J. Massey

There was a time when human resources practitioners and employment attorneys could list the "protected classes" groups of people protected from discrimination and harassment in the workplace like counting to five: race, color, religion, sex and national origin.

Those were the five classes protected by Title VII of the Civil Rights Act of 1964. Federal protections were gradually expanded to include age, pregnancy, citizenship status, veteran status and genetic information.

In recent years, the list of protected classes applicable to nationwide employers has grown substantially with the passage of more restrictive state and local laws. The requirements are ever-changing, particularly with regard to LGBTQ protections.

This evolving landscape creates challenges for employers, particularly those operating in multiple states or nationwide, when updating policies, handbooks and training materials.

Recent state activity

Employers may tend to think of LGBTQ protections as limited to a minority of progressive states. However, more than 20 states and the District of Columbia have enacted legislation recognizing employment protections on the basis of sexual orientation, gender identity, sex stereotyping and gender expression, or some combination of those.

Thus, employers operating nationwide who prefer to have one harassment policy applicable all employees nationwide, with policy addenda for states that require additional protections, should now consider whether to make a substantial change: eliminate the addenda and implement one nationwide policy that prohibits discrimination on the basis of any class that is protected in any state.

This is particularly important because even in the absence of statutes recognizing protected classes, state courts have interpreted anti-discrimination laws as providing broad protections.

For example, in the absence of a state statute banning sexual orientation discrimination, the Missouri Supreme Court recently recognized a gay male employee's sex discrimination claim alleging a violation of the Missouri Human Rights Act. The employee argued that he was treated differently than similarly situated co-workers because he "did not exhibit the stereotypical attributes of how a male should appear and behave." See Lampley v. Missouri Comm'n on Human Rights, 2019 WL 925557, at *24 (Mo. Feb. 26, 2019).

That same day, the Missouri Supreme Court also recognized the...