Employer Considerations after Justices' LGBTQ Rights Ruling
On June 15, the U.S. Supreme Court held, in a historic 6-3 decision, that gay, lesbian and transgender employees are protected under Title VII of the Civil Rights Act.
Justice Neil Gorsuch penned a decision in Bostock v. Clayton County, Georgia — and related cases Altitude Express Inc. v. Zarda and R.G. & G.R. Harris Funeral Homes Inc. v. U.S. Equal Employment Opportunity Commission — holding that employers are prohibited from discriminating against gay and transgender workers on the basis of sexual orientation or gender identity.
At the time of the decision, the majority of states did not provide employment protections for these members of the LGBTQ community. Thus, this Supreme Court ruling is a significant victory for the LGBTQ community that will have a lasting impact. But what does the decision mean for employers going forward, and what questions does it leave open?
Title VII is a provision of the Civil Rights Act that prohibits discrimination in the employment context on the basis of race, color, religion, sex, pregnancy or national origin. Because the statute does not expressly include the words "sexual orientation" or "gender identity," federal law was not settled as to whether the protected category of sex encompassed and prevented discriminatory acts on the basis of these categories.
The Supreme Court's landmark ruling gave clarity to this issue, with a resounding yes — discrimination on the basis of sex includes discrimination on the basis of sexual orientation and gender identity.
Considerations for Employers after Bostock
In light of Bostock, employers in the 26 states that did not already have statutes protecting employees on this expanded basis are wondering what best practices they can implement to ensure compliance.
First, employers should review their employment policies and practices to ensure they are inclusive of this clarified expansive definition of "sex." Particular policies to review may include equal employment opportunity, anti-discrimination and anti-harassment policies. We recommend sexual orientation and gender identity be expressly included in the list of protected characteristics to which employment policies generally apply.
Second, beyond the obvious employment policies, employers should also do a deeper dive to review other policies and practices that tangentially relate to LGBTQ rights.
For example, does the company have a dress code policy that conflicts with employees dressing in accordance with the gender norms they identify with rather than the gender he/she/they were born with? If a gay, lesbian or transgender worker has or adopts a child, are they afforded the same employee health benefits and parental leave opportunities as other non-LGBTQ employees?
If an employee reports harassment related to their use of a male or female restroom located on company premises, should the company convert single-user restrooms to gender-neutral restrooms, as is already required of employers in states like California? While the court's decision did not expressly address these issues, which were not before it, companies may want to consider how to proactively address these potential pitfalls.
Third, companies should be thinking more broadly and consider creating or updating a diversity and inclusion mission statement to accurately reflect the company's culture and expectations for its workforce. This is particularly important not just in light of the recent Bostock decision, but also given recent events resulting in activism and increased dialogue around racial inequalities, systemic injustices and biases.
The goal of such statements is to foster a supportive and inclusive work environment in which everyone feels welcome. When people feel valued and comfortable, they will be more inclined to share diverse viewpoints, be more collaborative and ultimately produce their best work.
Once policies, practices and statements are up to date, employers also need to have a proper mechanism to ensure compliance.
Our fourth tip for employers is to review complaint protocols. It is critical that there be multiple avenues to report issues to ensure employees feel comfortable reporting misconduct. Otherwise, companies could be placed in a difficult position of learning about unprofessional or discriminatory behavior too late, perhaps even in the course of a lawsuit.
After the hard work of drafting is done, our last, and arguably most important, suggestion for employers is to educate their workforce about the company's policies, values and the law. Standard, outdated harassment trainings will no longer cut it.
Companies need to consider effective and interactive training that will have a lasting impact and touch on current issues and challenging nuances. It is also important to consider tailored trainings for supervisors and managers, as well as human resources, as these employees have additional responsibilities not only to address and correct misconduct, but also to set an example.
If not appropriately trained, higher-level employees may unknowingly engage in conduct that goes against a company's intended practices and runs afoul of the Bostock ruling. Among other things, it is necessary for employees in these positions to understand that the Bostock ruling not only protects LGBTQ workers from termination, but also, from any adverse employment action.
Other adverse actions include unwarranted or harsher discipline, a pay reduction, a demotion or any other employment change that adversely alters one's work conditions based on his or her gender identity or sexual orientation. Relatedly, favorable employment actions, such as job promotions and pay raises, must be administered in a neutral way.
These are just a few points to consider among the host of employment practices implicated by the Bostock ruling. Ultimately, companies should explore specific considerations unique to their business for compliance and best practices.
Questions That Remain after Bostock
While providing clarity on the issue before the court, the Bostock ruling also raises a number of questions related to the LGBTQ rights now recognized in the employment context and whether they will expand into other areas.
While states like California and New York have long protected against discrimination based on sexual orientation and gender identity, the recent Bostock Supreme Court ruling puts to bed the issue of whether federal anti-discrimination protections are afforded to individuals on the basis of sexual orientation and gender identity.
However, Title VII only applies to employers of at least 15 employees, so time will tell whether state laws will incorporate this decision and apply it to smaller employers in their respective states. Also to still be decided is whether the interpretation of Title VII will continue to evolve to specifically include gender expression, which was not specifically addressed in the Supreme Court's opinion.
Another highly anticipated issue raised by Bostock is how it will reconcile the protections afforded under the precedent with religious employers that hold religious beliefs that conflict with the anti-discrimination provisions now afforded to LGBTQ workers. Indeed, the Bostock opinion noted that Title VII includes protections for religious employers and that a separate federal law and the First Amendment also allow faith-based groups latitude in their employment decisions, which Justice Samuel Alito's dissent in Bostock referenced as well.
On July 8, just weeks after Bostock, a 7-2 Supreme Court opinion authored by none other than Justice Alito gave us some further insight into this issue in Our Lady of Guadalupe School v. Morrissey-Berru and St. James School v. Biel.
In these cases, the court significantly broadened the so-called ministerial exception, a doctrine rooted in the First Amendment that gives religious institutions leeway in making hiring and firing decisions, applying it to lay teachers in religious schools who perform vital religious duties as subject to the exemption from civil rights laws such as Title VII. We will continue to watch as this issue is undoubtedly further analyzed in future decisions.
Beyond the Title VII protections to which the Bostock decision applies, it remains to be seen whether this expansion of the interpretation of federal law will carry into other areas, such as protections in housing laws, service providers and retail establishments, which, in many states, do not provide protections for LGTBQ individuals.
In fact, on June 12, mere days before the Bostock decision, the Trump administration narrowed the term "sex" within the Patient Protection and Affordable Care Act to specifically remove sexual orientation and gender identity as part of the definition, which the Obama administration had incorporated therein in 2016. The Human Rights Campaign has already filed a lawsuit on behalf of LGBTQ individuals challenging this action.
For now, we will have to stay tuned to see what happens next.
“Employer Considerations after Justices' LGBTQ Rights Ruling,” by Stephanie Kaplan, Beth Bernstein Connors, and Natalie Alameddine was published in Law360 on July 14, 2020.