A Q&A for Employers
R.S. “Rob” Ghio, Of Counsel to the Firm
On June 15, 2020, the U.S. Supreme Court handed down its decision in Bostock v. Clayton County, Georgia, holding in a 6-3 decision that Title VII of the 1964 Civil Rights Act prohibits employment discrimination against gay and transgender employees. The decision, somewhat surprising both in the number of joining the majority opinion and the absolute language of the holding, means that employers will have to reexamine policies, retrain employees, and anticipate additional expansions of the law.
WHAT THE COURT HELD
The Bostock court actually was considering three consolidated appeals from the 2nd, 6th, and 11th Circuit Courts. It presented the hotly debated issue of whether Title VII’s prohibition of discrimination based on sex includes a prohibition of discrimination based on being homosexual or transgender.
As background, until recently, courts have been reluctant to read such a protection into Title VII, including the Supreme Court itself. Congress has taken up the issue of amending Title VII to expressly include discrimination based on sexual orientation repeatedly, but such legislation has gone nowhere. The EEOC recently revised its regulations and said that sexual orientation was covered by Title VII, and the issue has been working its way up the federal court system with conflicting results.
Justice Gorsuch, writing for the majority, essentially ignored the debate and held that “no ambiguity exists about how Title VII’s terms apply to the facts before us.” He concluded that “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that person based on sex.”
WHAT DOES THE DECISION MEAN FOR EMPLOYERS?
The immediate result of the Court’s decision is that claims of discrimination or harassment based on sexual orientation or transgender status fall under Title VII and will need to be addressed just like traditional sex discrimination or harassment claims. This applies to all employers who are subject to Title VII; that is, all employers with more than 15 employees.
DO I NEED TO DO ANYTHING DIFFERENTLY AS A RESULT OF THE DECISION?
The impact of the decision on your business will depend on how you have handled such issues in the past. Some employers, out of consideration for state laws or as a matter of corporate culture and identity, already have taken steps to protect LGBTQ+ employees. Others…not so much.
First, you need to review your policies and handbooks to ensure that discrimination based on sexual orientation or transgender status is expressly addressed and prohibited. Discrimination and harassment policies should be revisited to ensure that all employees understand what is prohibited, how to make a complaint about discrimination or harassment, and how the employer will respond to such complaints.
Second, additional training should be held with all levels of management to ensure that this issue is openly addressed and that the employer’s policies are clear. First-line managers in particular will need to be trained to be sensitive to these issues and identify problems before they get more serious. It will be particularly important to address harassment, which is how many of these cases arise. Although the Court only was considering discrimination in terminations, harassment always has been viewed as a subset of discrimination, and therefore there is zero doubt that harassment of LGBTQ+ employees is prohibited as a result of this decision.
Third, HR departments may need additional training on how to investigate and respond to these claims. The sensitivity factor in dealing with such complaints may be significantly increased, especially given that some employees may be perceived as LGBTQ+ when they are not. Other employees may be gay or bisexual but have not come out. Such issues will require investigations to be both diligent and delicate.
Such preventive measures are your first line of defense against discrimination lawsuits. From a practical standpoint, employees who complain of discrimination and believe their complaints were handled fairly, rarely go looking for attorneys. From a legal perspective, having taken steps to prevent harassment can bolster your legal defenses and help avoid or limit punitive damages.
HOW DOES THIS AFFECT EMPLOYEES WITH RELIGIOUS OBJECTIONS TO LGBT LIFESTYLES?
This is likely to become a hotbed of controversy as religious discrimination is expressly prohibited under Title VII, and it will take some time for federal courts to work out the balancing act that will inevitably arise in some cases. Employers will have to coach and counsel employees to help them work through situations that they may subjectively find offensive as opposed to conduct which materially limits their equal opportunity in the workplace.
As for the employer’s potential religious objections, the Court observed that there are protections in place for churches and religious institutions. But for most employers, regardless of how anyone feels about the new decision, it’s the law.
DOES THIS MANDATE UNISEX BATHROOMS, LOCKER ROOMS OR SIMILAR ACCOMMODATIONS?
The Court punted these issues to future Justices, saying that they were not purporting “to address bathrooms, locker rooms, or anything else of the kind.” But employers should expect to have these boundaries tested, through claims of discrimination or requests for accommodation, or both.
Any time that a new cause of action is authorized by legislation or case law, an uptick in complaints and lawsuits should be anticipated, which is why some of the preventive/protected activities are suggested above. Employers should expect an increase in both the number of cases and an expansion of the types of cases brought, as employees and plaintiff’s lawyers try to make the Title VII umbrella as large as possible.
As always, if you have questions about this development in the law or need assistance with a particular issue, we are here to help.