By the HR team at East Coast Risk Management
As most employers know, Title VII of the Civil Rights Act of 1964, a federal law that applies to employers with fifteen (15) or more employees, states that it is illegal for employers to discriminate against employees based on race, color, religion, national origin, or sex.
In the summer of 2020, in the landmark case of Bostock v. Clayton County, the United States Supreme Court affirmed that the prohibition of sex discrimination in Title VII extends to discrimination based on sexual orientation and gender identity. This decision had a broad impact on LGBTQ rights in the workplace since Title VII now protects these employees against discrimination based on their status as homosexual or transgender. As part of its opinion, the Court said: “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.” The ruling has been hailed as one of the most important legal decisions regarding LGBTQ rights in the United States.
The U.S. Equal Employment Opportunity Commission (EEOC), the federal agency that is responsible for enforcing these new protections, recently issued guidance for employers regarding the protection of employment rights of LGBTQ workers. The guidance provides that employers cannot discriminate against individuals based on sexual orientation or gender identity with respect to hiring, firing, furloughs, reductions in force, promotions, demotions, discipline, training, work assignments, pay, overtime, fringe benefits, and other terms, conditions, and privileges of employment. EEOC guidance goes on to say, “Discrimination also includes severe or pervasive harassment. It is unlawful for an employer to create or tolerate such harassment based on sexual orientation or gender identity. Further, if an employee reports such harassment by a customer or client, the employer must take steps to stop the harassment and prevent it from happening again.”
Prior to the Bostock decision, it was unclear whether transgender employees were protected by Title VII. Before giving some examples of now prohibited employment actions involving transgender employees, it will be helpful to define “transgender”. According to the Centers for Disease Control and Prevention (CDC), transgender is an umbrella term for persons whose gender identity or expression (masculine, feminine, other) is different from their sex (male, female) at birth.
Examples of employment action involving a transgender employee that are now prohibited are:
- Offering a job to an applicant who initially presents as one sex but rescinding the offer when the employer learns that the applicant plans to or is transitioning to the other sex.
- Excluding a transgender employee from the bathroom that corresponds with their sexual identity.
- Requiring a transgender employee dress in a way that is inconsistent their gender identity.
- Acts of hostility towards a transgender or gender-nonconforming employee because they do not look or act like the employer thinks a man or woman should act.
- Discriminating against a potential or current LGBTQ employee solely because customers, clients or vendors prefer to work with people with a different sexual orientation or gender identity. For example, removing an employee from a customer account because the customer refuses to work with a person who identifies as transgender.
- The intentional and repeated use of a pronoun that is inconsistent with the employee’s gender identity could contribute to an unlawful hostile work environment. For example, using the pronouns “he” or “him” when referring to an employee who identifies as female and prefers “she” and “her”.
- Refusing to allow a transgender employee to wear the clothing associated with the gender with which the person identifies.
- Refusing to allow a transgender employee to use the restroom provided for the gender with which they identify.
- Telling jokes or insults about transgender individuals.
- Any violence directed at transgender individuals.
It is also unlawful for an employer to retaliate against, harass, or otherwise punish LGBTQ employees for:
- Filing an EEOC charge or complaint.
- Participating in any investigation, hearing, or other proceeding connected to Title VII enforcement.
According to the EEOC, retaliation is anything that would be reasonably likely to discourage workers from making or supporting a charge of discrimination, such as giving less desirable shift work, increasing workloads, changing work locations, etc. To learn more about retaliation, visit the EEOC’s webpage offering Guidance on Retaliation and Related Issues.
If you are an employer with questions about any safety, workers’ compensation, or human resources issue, contact East Coast Risk Management by calling 724-864-8745 or emailing us at hrhelpline@eastcoastrm.com. We will be happy to help!
Disclaimer: The information provided on this web site is for informational purposes only and not for the purpose of providing legal advice. Use of and access to this Web site do not create an attorney-client relationship between East Coast Risk Management or our employment law attorney and the user or browser.
