A landmark decision by the U.S. Supreme Court on June 15, 2020, held that an employer that "fires an individual merely for being gay or transgender violates Title VII of the Civil Rights Act of 1964."
In light of this ruling, employers that do not already prohibit discrimination based on sexual orientation and gender identity will need to update their policies immediately.
The ruling prohibits employers from making adverse employment decisions, such as firing or refusing to hire an individual because they are gay or transgender. It does not address "bathrooms, locker rooms, or anything else of the kind," so more litigation invoking Title VII protections based on sex is expected. Employers will be wise to prepare for and make changes to policies and practices that could find them on the wrong side of the law.
UPDATE POLICIES, TRAINING AND HANDBOOK
Include "sexual orientation and gender identity or expression" as a protected class, or include them in the definition of "sex" in:
· The employee handbook—such as in equal opportunity and anti-harassment statements, or anywhere prohibitions against discrimination based upon sex appearance.
· Policies—such as nondiscrimination and anti-harassment, and dress code and grooming policies that are not already gender-neutral.
· Employee training—any diversity, equal opportunity or workplace conduct training such as anti-harassment or bullying and anti-discrimination.
REVIEW BENEFITS, HIRING PRACTICES, WORKPLACE RULES AND COMMUNICATIONS
Review additional policies and practices that may discriminate against sexual orientation and gender identify or expression, such as:
· Benefits—any benefit that discriminates against employees based on these categories that is not already prohibited may soon be unlawful. For example, the recent Health and Human Services final rule rescinding health care protections based on gender identity, while based upon Title IX definitions of the Civil Rights Act, may be reversed once again.
· Hiring practices—background checks and reference checks may necessitate applicants divulge prior names that will expose them to potential employers as transgender. Ensure this information is kept confidential and not used against applicants.
· Workplace rules—any rules based on gender, such as bathroom use, may need to be revised to allow for gender-neutral or gender identity-based practices.
· Internal communications—eliminate wording that assumes traditional gender roles and heterosexual relationships and families as the norm.
Contact APEX HRO with any questions and for more information on requesting a compliance review.
Send an email to firstname.lastname@example.org or call 720-899-0652