Tag: lgbtq

Bostock v. Clayton County: Supreme Court Rules Title VII Protects LGBT Workers; Employers Must Now Adapt

The Supreme Court’s landmark decision in Bostock v. Clayton County is significant yet simple. “An employer who fires an individual merely for being gay or transgender defies the law.” Discrimination on the basis of an individual’s sexual orientation or gender identity (transgender status) is now considered an unlawful employment practice under Title VII of the Civil Rights Act. As of June 15, 2020, millions of LGBT workers may raise Title VII’s broad shield to resist unlawful workplace harassment and discrimination. They may also unsheathe its broad sword.

Bostock has immediate consequences for all employers subject to Title VII, including those in states that already prohibit LGBT harassment and discrimination. Bostock must be integrated into the workplace culture and reflected in workplace practices, policies and procedures. Employers must take action to ensure (or confirm) compliance with the Court’s decision.

Identify all employment-related documentation that involves “sex” or gender-based characterizations. Employee handbooks and existing harassment and discrimination policies are a good place to start, but employers must go beyond the obvious. Sex and gender-based characterizations can be found in other documents too, like dress code policies, job applications and benefits enrollment forms.

Update relevant documentation to include sexual orientation and gender identity (transgender status) among the list of protected categories. Some documents may require little more than adding sexual orientation and gender identity (transgender status) wherever the word “sex” appears. Others may require more extensive revisions.

Update equal employment opportunity (EEO) statements to include sexual orientation and gender identity (transgender status) among the list of protected categories. EEO statements are often posted on websites and included in job postings and marketing materials. They can also appear in non-employment related contexts as well, such as bids for contracts and project proposals.

Communicate policy changes to employees. Don’t assume employees know about the Supreme Court’s ruling or the resulting change in the law. Updated policies should be distributed to and acknowledged by all employees.

Train managers and supervisors. Don’t assume managers and supervisors grasp the dynamics of LGBT harassment and discrimination. Those in positions of authority must be trained to understand, recognize and address these new forms of unlawful conduct.

Train employees. Rules cannot be followed unless they are known. Rank and file employees need updated harassment and discrimination training to help them understand expectations and conduct themselves accordingly.

Claims of unlawful conduct often increase when laws change. Bostock’s limits will likely be tested for years to come. In addition to taking necessary remedial measures, employers should carry Employment Practices Liability Insurance to protect against the uncertainty that typically follows landmark decisions like Bostock. Please contact us if you would like to learn more about employment practices liability insurance.

Supreme Court Considering Whether Title VII Prohibits LGBT Harassment and Discrimination

Does Title VII of the Civil Rights Act prohibit discrimination on the basis of sexual orientation, transgender status or sex stereotyping? We don’t know…yet. Three cases currently pending before the United States Supreme Court should give us an answer. Two of these cases involve sexual orientation discrimination. The third involves discrimination based on transgender status.

The Supreme Court heard oral arguments in October 2019, but we don’t know exactly when the Court will issue its highly-anticipated rulings. In the meantime, here is a brief summary of where things currently stand.

  • Title VII prohibits discrimination “because of…sex,” but it does not expressly prohibit discrimination on the basis of sexual orientation or transgender status.
  • Federal appellate courts are split on whether “sex” under Title VII should be interpreted to include sexual orientation, sexual identity, transgender status or sex stereotyping.
  • The Equal Employment Opportunity Commission has taken the position that Title VII prohibits employment discrimination based on gender identity and sexual orientation. 
  • The Department of Justice has taken the position that Title VII does not prohibit discrimination because of sexual orientation.
  • Some states have enacted laws that expressly prohibit LGBT-related employment discrimination. Others have not.

Since the EEOC began tracking LGBT-related discrimination in 2013, there has been a steady increase in the number of charges filed by employees and the amount of monetary benefits recovered from employers. Depending on how the Supreme Court rules, these numbers may increase dramatically or disappear altogether.

Changing laws and uncertain legal obligations substantially increase the likelihood of claims involving unlawful harassment or discrimination. Employers should carry Employment Practices Liability Insurance to protect against any number of employment-related claims. Employers should also provide sexual harassment training to employees, particularly those in managerial and supervisory positions. Please contact us if you would like to learn more about employment practices liability insurance.