The Supreme Court issued a landmark employment discrimination decision this month that will require all employers to take action to update their policies, review their hiring practices, and evaluate their benefits plans regarding the rights of LGBTQIA individuals.  The holding: Title VII’s prohibitions against workplace discrimination because of sex also prohibit discrimination in employment because of sexual orientation and gender identity. Employers cannot take adverse action against an employee or candidate for employment because of their sexual orientation or gender identity. 

Action Required of Employers

Each topic below is linked to the relevant content. 

• Learn: Title VII Prohibits Discrimination 

• Learn: Prohibited Adverse Employment Actions

• Understand: Hostile Work Environment Behaviors

• Revise: Employee Handbook and Discrimination/Harassment Policies

• Communicate: Policy Changes; Discrimination/Harassment Training

• Review: Benefits Offerings for Nondiscrimination

• Review: Equitable Hiring Practices

• Education

Learn: Title VII Prohibits Discrimination

When we refer to “Title VII,” we’re referring to Title VII of the Civil Rights Act of 1964, which makes it unlawful for an employer to discriminate against any individual with respect to hiring, termination, and/or compensation and other terms, conditions and privileges of employment because of an individual’s race, color, religion, sex, or national origin. 

In this decision, the Supreme Court states that, “an employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.” 

Learn: Prohibited Adverse Employment Actions 

Employers are prohibited from taking adverse employment actions against an individual because of their protected class status, which now includes sexual orientation and gender identity. 

For example:

• Failing or refusing to hire an individual because they are homosexual and/or transgender; 

• Firing an individual because they are homosexual and/or transgender;

• Demoting, transferring, or otherwise altering the terms and conditions of an individual’s employment negatively because they are homosexual and/or transgender;

• Paying an individual less or providing fewer or worse benefits because they are homosexual and/or transgender*

When we say “because of,” that means that someone’s sexual orientation or gender identity cannot be the causal factor, or a contributing causal factor, in taking the adverse action. 

Understand: Hostile Work Environment Behaviors

Employers are obligated to provide a work environment free of hostility, harassment, or other discriminatory conduct taken against an individual because they are homosexual and/or transgender. Employers must take action to investigate and address any allegations of discriminatory or harassing behavior in the workplace. 

Some of the behaviors that may contribute to a hostile work environment include, but are not limited to:

• Homophobic slurs, “jokes,” comments, memes, etc.

• Refusal to recognize an employee’s gender identity, including the refusal to use their preferred pronouns or requiring “gender conforming” clothing or hairstyles, regardless of whether the employee is undergoing, or plans to undergo, gender-affirming surgery and/or hormone therapy

• Invasive questioning or comments about the employee’s sex life, sexual preferences, and/or relationships

• Making, or allowing to be made, comments like “there are only 2 genders,” “homosexuality is a sin,” and/or comments belittling or deriding the existence of any of the spectrum of gender identities and/or sexual preferences represented by the LGBTQIA+ community

• Sexual jokes, sexual advances, requests for sexual favors, leering, touching, grabbing, hostile comments, or pictures negatively portraying a specific sexual orientation, etc.

• Engaging in mocking or stereotyping a sexual orientation or gender identity

Employees and managers engaging in behaviors that are so severe and pervasive as to make the work environment hostile should be held accountable under your company’s discrimination and harassment policies. 

Revise: Handbook and Discrimination/Harassment Policies

Almost every employer will need to amend company policies and the employee handbook to include prohibitions against discrimination or harassment on the basis of sexual orientation and/or gender identity. Allegations of discrimination, harassment, or retaliation must be investigated following your company’s established processes, and employees violating these policies must be held accountable under your corrective action process. If your reporting process or progressive discipline policy are not defined, now’s the time to do it. 

Communicate: Policy Changes; Discrimination/Harassment Training

Once your policies have been updated, those changes must be communicated to your staff with proper expectations set. Review the policy with them, have them complete a sign-off sheet to indicate that they were made aware of the policy, and file the policy sign-off in the employee’s personnel file. Your discrimination and harassment policies should be reviewed, with a new policy sign off completed, annually. This is important documentation should you need to hold someone accountable under the policy later.

It is also highly recommended that you conduct a discrimination and harassment training with your entire staff. Unless you’re a subject matter expert in discrimination and harassment, you should partner with a professional experienced in conducting these training classes. [Transparent shameless plug: I’m one of those experienced professionals that offers discrimination and harassment training for employees and managers.] 

Chisa’s “Soap Box” Interlude

Listen, real talk, it’s 2020, and in case you haven’t noticed, people just aren’t having the whole “I didn’t know it was offensive” or “I didn’t understand the implications of my actions” thing anymore. It’s playing out on social media every day. When someone says, does, or posts something offensive, people start flooding their employers with messages about their employee’s offensive conduct, prompting companies to take action or face repercussions. Now more than ever, discrimination and harassment training isn’t just a “check the box” thing you should do just to say that you’ve done it. Your employees and managers need to understand acceptable and unacceptable behaviors and how conduct or speech outside of work can affect their relationships and credibility inside of work- or their employment status altogether. Managers need to understand how to address these situations when they arise. 

Part of protecting your brand is establishing, then protecting, a workplace culture that aligns with your vision for your brand. Education and setting expectations through training sessions are critical. 

Review: Benefits Offerings for Nondiscrimination

Employers cannot discriminate when providing “fringe benefits” to their employees, such as medical, disability, accident, life, and/or retirement benefits, bonus plans, paid time off, etc. You will need to assess your benefits plans and make any changes necessary to ensure that eligibility for benefits, as well as the benefits offered under those plans, are nondiscriminatory. 

Some examples of discriminatory benefits include:

• Providing health plan coverage to opposite-sex spouses or domestic partners but not same-sex spouses or domestic partners;

• Plans that deny coverage to transgender individuals;

• Charging transgender individuals a higher premium for coverage;

• Health plans that don’t provide medically necessary mental health benefits, hormone therapy, and some level of gender-affirmation surgical benefits for transgender employees;

• Plans that limit sex-specific care based on an individual’s sex assigned at birth or gender identity, i.e. not covering a hysterectomy for a transgender individual while providing coverage to a cisgender** woman for the same procedure;

• Refusal of family planning benefits for same-sex couples;

• Denial of short term or long term disability benefits due to gender dysphoria*** or gender-affirmation surgeries

Review: Equitable Hiring Practices

Ensure that your hiring practices are equitable and nondiscriminatory. Use a blind resume review process, standardize your interview questions, and make sure managers conducting interviews are trained on how to overcome implicit bias in interviewing and hiring decisions.

Education

These discrimination prohibitions are effective immediately. If you have a bit of a knowledge gap where the LGBTQIA+ community is concerned, it’s going to be important for you to do a little homework to avoid inadvertent, unlawful discrimination and harassment. There is a full spectrum of people with all sorts of different experiences regarding gender identity, sexual orientation, and romantic relationships, including those questioning their true identity, those who do not identify with any defined gender, and those experiencing little to no sexual attraction to anyone. Some people identify as transgender, some identify as gender-nonconforming, some gender-fluid, some as non-binary, some as agender, and others as genderqueer. 

Gender identity and sexual orientation aren’t black-and-white terms where every person fits squarely into a well-defined “box,” and we can’t assume that they do, nor can we force people to conform to  the boxes in which they are most familiar or comfortable with. We have to recognize and respect each person’s individual identity and provide a respectful workplace culture for all. 

UC Davis’ LGBTQIA Resource Center provides some pretty excellent “Get Educated” resources to get you started, including a glossary of terms, tips for being an ally, and guides for understanding pronouns and words that hurt (aka words that can create a hostile work environment). 

As always, we’re here to help. Contact us to update your policies, to schedule a discrimination and harassment training, or for any other assistance in creating and maintaining a respectful workplace.

* For purposes of this article, we’ve used the same language as the Supreme Court used in its opinion, i.e. “homosexual and transgender”, for the sake of consistency; however, this author would like to personally extend an apology to all members of the LGBTQIA+ community who do not find themselves represented in this article based on our adoption of this language used by the court.

** Cisgender: a person who identifies with their physical sex at birth. 

*** Gender dysphoria: clinically significant distress that may be experienced by a person who feels a mismatch between their gender identity and assigned sex at birth, increasing risk for stress, isolation, anxiety, depression, and suicide.