On June 15th, the landmark civil rights case, Bostock v. Clayton County—which extended Title VII Civil Rights protections to the LGBTQ community—celebrates its one-year anniversary.
Now is an excellent time to make sure your HR policies and materials are up-to-date when it comes to sexual orientation and gender identity—two fast-growing subcategories of workplace discrimination litigation.
Of course, prior to the Supreme Court case, 25 states already had similar laws on the books, and many employers had already updated their HR policies accordingly.
In addition, President Obama had signed an executive order in 2014, adding sexual orientation and gender identity to the list of protected categories observed by federal government contractors—a first step toward more widely-adopted Department of Labor regulations. However, President Trump reversed this particular policy three years later.
In other words, these issues have been on the radar for a while. However, like other forms of workplace discrimination, they remain a widespread problem. For example, the Harvard Business Review reports that, in a 2020 study, a full 47% of trans employees reported experiencing discriminatory behavior at work on a daily basis.
Furthermore, the EEOC reports that, of the 67,448 workplace discrimination charges filed in fiscal year 2020, nearly 32% involved some form of sex discrimination. Of these 21,398 cases, 1,857 were identified as LBGTQ-based—a number that has increased every year from 2013.
According to employment law experts, that number is only expected to rise.
Understanding the Supreme Court Ruling
The Bostock v. Clayton County ruling was actually a consolidation of three related employment cases: Bostock v. Clayton County, Georgia; Altitude Express, Inc. v. Zarda and Harris Funeral Homes v. EEOC. Two of these cases focused on sexual orientation; the other on gender identity.
The title case involved Gerald Bostock, a long-time child welfare services coordinator for Clayton County, Georgia. For 10 years, he received positive performance evaluations—until in 2013, he began playing in a gay recreational softball league. When this became known, he was criticized for it at work, targeted for review, and eventually terminated for “conduct unbecoming.”
Title VII of the Civil Rights Act of 1964 prohibits employment discrimination based on “race, color, religion, sex, or national origin.” In its ruling, the Supreme Court interpreted the law’s “on the basis of sex” language to include sexual orientation and transgender status. Its rationale: because employers can’t conclude that workers are gay or transgender without first identifying their sex, sexual orientation and gender identity are inextricably based on sex.
In addition, the Court stated that sex didn’t need to be the primary cause in an employment decision for the law to apply, making it difficult for employers to disguise sex discrimination as a performance-related issue. As with other potential forms of discrimination, employers need to develop strong HR policies and observe them rigorously.
What Employers Can Do
There are a number of steps employers can take to ensure their inclusion efforts embrace all employees, regardless of race, color, religion, national origin, or sex—including sexual orientation and gender identity. If you haven’t already, you may find it wise to:
- Review your recruiting and hiring processes to ensure that they are unbiased—and that processes for determining pay rates, conducting performance reviews, and offering opportunities for advancement are free from discrimination.
- Provide updated anti-discrimination training to employees, specifically addressing sexual orientation and gender identity, along with long-established forms of workplace discrimination.
- Provide updated training to managers on recognizing unconscious bias in all forms, while giving managers strategies for promoting inclusiveness within their teams.
- Ensure you have a process in place for addressing discrimination complaints and holding workers and managers accountable for their actions.
- Confirm that your employment practices liability insurance policy provides coverage for sexual orientation and gender identity claims.
- Review your health insurance and benefit programs for inclusivity. Cases of healthcare discrimination are rising, and some trans employees are already relying on Bostock v. Clayton County to argue that employer health plans must provide transgender medical benefits.
- Consider supporting LGBTQ not-for-profit organizations as part of your corporate social responsibility program.
And of course, make sure your HR policies and employee handbook reflect that discrimination based on sexual orientation and gender identity will not be tolerated—along with more conventionally-understood forms of workplace discrimination. (If you’d like to see how your employee handbook might be improved, download our sample employee handbook template.)
Current and past events indicates that workplace discrimination complaints regarding sexual orientation and gender discrimination will only become more common with time. In order to avoid EEOC compliance violations and potential civil lawsuits—not to mention maintain a fair, tolerant, equitable workplace and culture—the time to ensure compliance is now.