Last week I posted about the US Supreme Court case, Bostock v Clayton, County, Georgia, specifically the ruling itself and the underlying reasoning. You can read that post here if you missed it. The 3 consolidated cases that prompted the ruling all involved the firing of an employee based either on their sexual orientation or gender identity. As we now know, SCOTUS ruled that discrimination on the basis of sexual orientation or gender identity is prohibited sex discrimination under Title VII of the Civil Rights Act of 1964. In other words, the impact of this case is likely to extend beyond hiring or termination issues. Let’s have a look at some of the other potential implications. Let’s briefly review. Title VII prohibits discrimination on the basis of race, color, national origin, religion or sex. Title VII goes on to make it illegal for any employer to “fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment.”
Let’s start with the more obvious. We know from the specific cases in Bostock that firing someone based on sexual orientation or gender identity is now illegal under Title VII. What would be the other “terms, conditions or privileges of employment” though? Pay would certainly be obvious. You can’t pay someone less than you might otherwise pay just because of their sexual orientation or gender identity. You can’t deny a promotion, transfer, or any other opportunities for advancement on that basis. You can’t discipline an employee differently on that basis either.
There’s something else though–and it’s a big one: Benefits. Here’s one example: Does your benefits plan cover medical benefits to someone who is going through a gender transition? If not, employees might argue that Bostock requires employers to provide such benefits. What if you feel that doing so might violate your religious beliefs though? As you might have guessed, SCOTUS didn’t decide that specific issue, because none of the parties raised it. The court even made a point of saying so–which likely means we–and SCOTUS– can expect such a case in the future.
This particular question has arisen in another context. Just three days before the SCOTUS ruling the Department of Health and Human Services announced a final rule eliminating the anti-discrimination provisions based on gender identity in health care and health insurance. DHHS reasoned that those protections (implemented under the Obama Administration) were unenforceable because they exceeded the Administration’s authority. Does the SCOTUS ruling change that in any way? No, because the SCOTUS decision interpreted Title VII, whereas DHHS’s Final Rule is based on an interpretation of the Affordable Care Act. Would this Rule survive SCOTUS scrutiny? I guess the only way we’ll really know is if someone challenges it. At the same time, with the Bostock ruling, DHHS might find it harder to maintain its position and may find itself pressured to re-evaluate its stance.
What can — and should– you as an employer expect in light of the SCOTUS ruling? For starters, yes, you can expect to see more litigation. We can expect more failure to hire, wrongful termination, failure to promote, harassment, hostile work environment claims, based on sexual orientation, and gender identity. We can also anticipate the possibility of benefit-related claims. Is there anything you can do? While you probably can’t stop someone who is determined to file a charge or lawsuit, there are still things you can do now to minimize your chances of charges or lawsuits on this basis. Here are some starting points:
- Review your existing policies and your Employee Handbook. Do their anti-discrimination protections include sexual orientation and gender identity?
- Update existing policies and your Employee Handbook. If the answer to the above question is “No”, then revise those policies — NOW!
- Train your staff and your managers on your anti-discrimination policies. Even if you recently did so, in light of Bostock a refresher can never hurt.
- Make sure training happens more than once. If you only do training as a one-and-done deal then you will probably still have problems in this area as it will not demonstrate an ongoing commitment to a discrimination and harassment-free workplace.
- Make sure you have a procedure for reporting and investigating complaints and that your employees know about it.
- Take all such complaints seriously and investigate– promptly and thoroughly.
- Make sure your policies prohibit retaliation and enforce them as well.
- Talk–and listen– to your employees. Ask them how things are going and if they have any concerns. Often you will get your first indication of potential discrimination here and can catch it early before it escalates to a charge or lawsuit.
All right, this should be enough to get started–and I believe I’ve said my piece for now!
Watch the latest video clip in my series, “Ask the Employer’s Lawyer: My Employee Has Exhausted All Her FMLA Leave Time. What do I do?
Watch my television interview on Stop My Crisis with Vivian Gaspar.
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