The U.S. Supreme Court last month settled one of the biggest questions in employment law in recent years, ruling that Title VII of the 1964 Civil Right Act prohibits employment discrimination on the basis of both sexual orientation and gender identity.
The decision in Bostock v. Clayton County, Georgia, was a historic moment for individuals in the LGBTQ community and for their employers. While some workplace policies are certain to change in the coming months, sources who spoke to HR Dive emphasized that many of the ruling's outcomes may not be known for some time.
"It opens up a bunch of interesting things," David Flugman, partner at Selendy & Gay PLLC whose public interest practice is focused in part on advancing LGBTQ rights, told HR Dive in an interview. Title VII's mandate prohibiting employers from taking adverse employment actions or conditions of employment against an employee on the basis of protected characteristics is broad, Flugman said, which means the high court's order could impact any of several conditions of employment. "A lot of things could potentially fall under that ruling."
Likely points of discussion for HR
Some organizational policies are more likely than others to require attention in light of Bostock, however. Employers operating in cities and states that do not already have local protections against sexual orientation- and gender identity-based employment discrimination will need to ensure their policies and practices include such protections clearly, Jason Habinsky, partner at Haynes and Boone, told HR Dive in an email. "It follows that employers must also take all steps to enforce these protections, including updated training for supervisors and employees, as well as promptly investigating and soundly disciplining any violations on these bases," Habinsky added.
As far as specific policy updates, employers that did not prohibit discrimination on the basis of sexual orientation and gender identity in the past should clarify that their policies now prohibit such actions, Chai Feldblum, Morgan Lewis partner and former U.S. Equal Employment Opportunity Commission (EEOC) commissioner, told HR Dive in an email. "The employers should then also apply the same approach for internal investigations of sexual harassment and discrimination claims to claims based on sex, sexual orientation and gender identity," she said.
Beyond explicit claims of harassment and discrimination because of LGBTQ status, employers must also pay attention to more subtle complaints related to how covered employees are treated, Randy Coffey, partner at Fisher Phillips, said in an email. He added that the list of potential claims may include:
- Allegations of differential treatment from others regarding work assignments, promotions and other consequential activities.
- Religious references or comments from other employees.
- Slights such as those related to bathroom preferences.
- Exclusion of spouses and significant others for LGBTQ relationships at company events (when those individuals are included for other relationships).
- Incorrect pronoun use.
"Employers will need to carefully consider whether employee complaints from LGBT employees potentially implicate concerns that might be considered harassment or contribute to a hostile work environment," Coffey said.
Implications for employee benefits
Employers may also be required to make, or may need to consider making, certain changes to employee benefits plans.
For example, employers that exclude same-sex spouses or domestic partners from plan coverage that would otherwise cover opposite-sex spouses or domestic partners may need to consider changing this. "In light of [Bostock], plans making differential coverage available on the basis of same-sex spouses would open themselves to Title VII sex discrimination claims," Coffey said. He added that many state laws regulating insured plan coverage require extension to same-sex spouses for any coverage based on marital status.
Additionally, employers may need to check for exclusions in group health plans or EAPs of services for transgender-specific needs including, but not limited to, services related to gender dysphoria and gender-affirmation surgeries as well as restrictions on mental health services relating to gender dysphoria. Similar changes may need to be made to restrictions on services for sex-specific care based on an individual's sex assigned at birth, gender identity or recorded gender, Coffey said.
"Employers will want to carefully review their medical coverage for these and similar differences that previously may have been acceptable, but which may now subject them to sex discrimination claims under Title VII," he added.
Transgender people should not be treated differently than cisgender people, Feldblum said: "The best practice for employers is to realize that a transgender woman is not partially or half a woman — she is a woman. The same goes for a transgender man — he is a man."
Other points are less clear. In a guidance document issued June 30, the EEOC noted that the Supreme Court's ruling does not address related issues under Title VII such as dress codes, bathroom access or locker room access. "The Court also noted that its decision did not address various religious liberty issues, such as the First Amendment, Religious Freedom Restoration Act, and exemptions Title VII provides for religious employers," EEOC said.
Pronoun policies are another area that may lack clarity, said Flugman, who said he isn't sure whether Bostock mandates such policies: "We'll only find out when we see courts address the issue." Some companies may opt to limit their liability as much as possible and draft policies, but each organization will likely make its own judgment of the risks involved before doing so, he said.
But employers should still educate themselves on the ways in which LGBTQ employees might feel marginalized or potentially harassed in the workplace, Feldblum said, including conventions around pronoun use.
"If a co-worker or a manager slips up by mistake and calls the person the wrong name or pronoun, employers should work to create a safe and inclusive workplace culture in which the transgender employee or a fellow co-worker feels comfortable and safe correcting the person, or a supervisor who hears the misuse of the name or pronoun would intervene," Feldblum said. "But if a coworker or a manager consistently and intentionally uses the wrong name or pronoun to create a hostile work environment for the transgender employee, and nothing is done to stop that, the employer is putting itself at legal risk."
Though the high court left areas like pronoun use open, employers may not receive a definitive answer on such issues "for quite some time," Coffey said. "The safest approach at this point is for employers to tread carefully and to protect themselves by having policies and approaches that are as broad and as inclusive of LGBT employees as the company is comfortable with, and giving consideration to how subjects that now-protected LGBT employees may find offensive should be addressed so that there this is consistency in that regard," he added.
The outcomes of future court decisions are one thing, but an employer's approach to diversity and inclusion is another. "I think that companies should be thinking about ways to innovate their employees' experience," Flugman said. "D&I is important to getting the best performance from people … it's good for business to be inclusive and remove obstacles."