While many events took a back seat over the summer to COVID-19 news and developments, one event was particularly noteworthy. In June, the Supreme Court issued a ruling making clear that sex discrimination under Title VII of the Civil Rights Act of 1964 includes lesbian, gay, bisexual, transgender or queer (LGBTQ) status. Employers should take note of the decision and ensure their employment practices comply with the ruling.
Title VII Of The Civil Rights Act Of 1964
Title VII applies to all private employers, state and local governments and education institutions that employ 15 or more individuals. It also covers private and public employment agencies, labor organizations and joint labor management committees controlling apprenticeship and training. The law prohibits discrimination in virtually every employment circumstance on the basis of race, color, religion, gender, pregnancy or national origin. Its intent is to “level the playing field” by forcing employers to consider only objective, job-related criteria when making employment decisions concerning employees and applicants for employment.
Background Of Cases Leading To Decision
There were three different cases that led to the Supreme Court’s decision last June. In all three cases, employees were fired because of their sexual orientation or gender identity. When Gerald Bostock participated in a gay recreational softball league in Clayton County, Georgia, he was fired for conduct “unbecoming” a county employee. Altitude Express fired Donald Zarda days after he mentioned being gay. The 3rd case involved Aimee Stephens who presented as a male when she was hired and later informed her employer, R.G. & G.R. Harris Funeral Homes, she planned to “live and work full-time as a woman.” The funeral home fired her.
The Supreme Court’s Ruling
The ruling was 6-3, with Justice Neil Gorsuch, writing the majority opinion. “Today,” Gorsuch said, “we must decide whether an employer can fire someone simply for being homosexual or transgender. The answer is clear.” He found such discrimination is barred by the language in the 1964 law that bans discrimination in employment based on race, religion, national origin or sex. Gorsuch went on to write, “It is impossible to discriminate against a person for being homosexual or transgender without discriminating … based on sex.”
Implications for Employers
Before the court’s June decision, 21 states had laws explicitly mentioning sexual orientation and/or gender identity in their anti-discrimination statutes. After the Supreme Court’s decision, employers in every state must now understand that Title VII protections from sex discrimination also prohibit discrimination against LGBTQ employees. Some action items to consider:
- Offer Respectful Workforce Training. This training focuses on ways to achieve a welcoming workforce for all. Often this training deals with unconscious bias and microaggressions in the workplace and provides strategies for bystanders to such behavior to employ. Stay tuned for next week’s Smart HR blog for more detailed information on Respectful Workforce Training, and how it can benefit your organization.
- Amend EEO and anti-discrimination policies to include LGBTQ employees as a protected class. Ensure the updated policy is communicated to all employees.
- Ensure managers understand the scope of “employment decisions and actions” as they related to Title VII. Termination is by no means the only employment action for which discrimination is prohibited. Managers should understand it is illegal to discriminate in any aspect of employment including: compensation, assignments, transfers, promotions, layoffs, recalls, recruitment, testing, job advertisements, use of company facilities, training programs, fringe and other benefits and leave.
Smart HR – Your Compliance Expert
There is a lot going on these days – ongoing COVID-19 issues and concerns, a presidential election, peaceful and non-peaceful demonstrations and preparations for a Supreme Court confirmation hearing. It would be easy for legislative changes and court rulings to go unnoticed. With Smart HR as your compliance expert, you don’t have to worry about missing something that could impact your business and workforce. Call Smart HR today.
