Discrimination on the Basis of Sexual Orientation or Transgender Status is Illegal: Six Actions Employers Should Take Now
The Supreme Court’s landmark decision in Bostock v. Clayton held an employer who terminates an employee for being gay or transgender violates Title VII of the Civil Rights Act. This decision expands employee protections under Title VII.
The Court’s Decision
Since its passage, Title VII has prohibited discrimination on the basis of race, color, religion, sex, or national origin. In the 172-page opinion, Justice Gorush wrote: “An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision.” More precisely, “[w]hen an employer fires an employee because she is homosexual or transgender, two causal factors may be in play—both the individual’s sex and something else (the sex to which the individual is attracted or with which the individual identifies).” The court further reasoned: Title VII, prohibits discrimination “because of” sex, and “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.” Accordingly, the Court expressly held sexuality and transgender status fall under the scope of Title VII.
Who Must Comply with the Ruling?
This ruling applies to all employers who are required to comply with Title VII. Of course, many states and municipalities already offered protections to LGBT workers and many employers had already voluntarily adopted such policies. For all other employers, this ruling constitutes a significant expansion of Title VII.
Six Things Employers Should Do Now:
- Update. Employers should update their handbooks and written workplace policies to prohibit discrimination on the basis of sexual orientation or transgender status. Ensure the policies have specific instructions on how to report discrimination.
- Communicate. Promptly communicate changes to workforce.
- Train. Employers need to train their employees—especially management—on the new protections under Title VII.
- Review. Employers need to review their harassment training materials. If they do not include a section on harassment training to include harassment based on gender identity and sexual orientation, add it. Be sensitive to subtle gender harassment issues.
- Analyze. Employers should critically look at job descriptions and dress codes to ensure there are no requirements for an employee to wear gender-conforming clothes, haircuts or certain grooming standards.
- Confirm. Employers must review benefit plans to ensure they do not discriminate against LGBTQ employees.
Many employers who had either voluntarily offered protections to LGBT workers or are in states or towns that provided protection need to review their policies and training materials to ensure compliance. For employers that did not have LGBT worker protection, they will need to change their policies and handbooks as well as provide employee training.
About the Author: Alejandro Pérez is a partner at the Phoenix law firm of Jaburg Wilk. He assists clients with employment law issues including hiring, termination, employee discipline, paid sick time, leaves of absence, wage and hour compliance, and whistle-blower liability. Alejandro also conducts workplace training on a variety of topics, including sexual harassment, discrimination, and workplace inclusivity.