United States: Pride At Work: What Employers Need To Know About LGBTQ+ Rights

As PRIDE month concludes, we look back at a historic year for the rights of LGBTQ+ employees, and ahead for what this means for employers as they manage their workforce.

Looking back, it was June 2020 when the Supreme Court held that discrimination on the basis of sexual orientation and transgender status constitutes unlawful sex discrimination under Title VII of the 1964 Civil Rights Act. We've discussed the landmark Bostock v. Clayton County decision in-depth before. Fast forward, one year later on Bostock's first anniversary, the EEOC issued a slate of new resources to help employers comply with new LGBTQ+ protections.

According to Catalyst.org, members of the LGBTQ+ community still face high rates of discrimination in the workplace. At least 20 percent of LGBTQ+ employees report being discriminated against when applying for jobs and 52 percent report having been subjected to lesbian or gay jokes in the workplace.

Discrimination is bad for business, as it impacts employee retention. Nearly half of LGBTQ+ workers in the United States are closeted at work with 10 percent having left a job because of an intolerant environment. Meanwhile, 25 percent reported staying in a job because of an inclusive culture.

As discrimination in the workplace persists, so too do related lawsuits. In fact, before we were able to finalize this short blog, two new cases hit the press. One involved a former Boeing contractor's suit against a staffing agency claiming she was fired for being a transgender woman. The other involved a former Iowa Democratic official's suit against the state's prior Republican governor alleging the governor cut his salary and urged him to resign because he was gay. Without commenting on those claims, no employer wants to be in that headline.

So how do you avoid being in the headlines? Start by knowing the law. Here's what you need to know about the new EEOC guidance:

How has the EEOC interpreted Title VII protections after Bostock?

The EEOC's post-Bostock guidance outlines the types of actions it considers unlawful discrimination or harassment based on sexual orientation or gender identity.

• It doesn't matter what clients or customers prefer. When it comes to the rights of your LGBTQ+ employees, your clients are NOT always right. For example, the EEOC states that it would be unlawful to move an LGBTQ+ employee out of a public-facing position because of real or perceived client preferences about sexual orientation or gender identity.

So employers should avoid acting on customer suggestions about how client/customer-facing roles must "look" like a certain gender.

• Employers cannot discriminate based on non-conformity with gender stereotypes. For example, employers cannot require transgender employees to dress in accordance with the sex they were assigned at birth. This is true regardless of whether an employer knows the employee's gender identity or sexual orientation.

Employers should avoid the "male" and "female" dress codes. Instead, employers should require their employees to be neat, professional, and wear clothing that is appropriate for their job.

• Employers can have separate, sex-designated bathrooms, locker rooms, and showers. However, the EEOC's position is that employers may not deny an employee equal access to a bathroom, locker room, or shower that corresponds with the employee's gender identity.

While, this can be tricky to comply with, we have not found it to be an insurmountable problem with most employees. The key is often some education. You may just need to give some explanation to employees, especially if there has been a gender transition, as to who is using the facilities.

• Employers cannot disregard an employee's preferred name or pronouns. This gives much more weight to the preferred pronouns that some have opted to include in their signature block and LinkedIn profiles. While accidental misuse of a transgender employee's preferred name and pronouns does not constitute a Title VII violation, intentional and repetitive use may contribute to a hostile working environment.

Employers, train your employees and especially managers to be sensitive to proper name and pronoun use.

How is the EEOC enforcing Title VII protections for LGBTQ+ workers?

Among their recent notable victories, EEOC litigators secured a $175,000 judgment against a retail employer for subjecting a gay male and female employees to a hostile work environment based on sex when a manager subjected those employees to unwanted sexual comments, photographs, and touching and the employer failed to adequately intervene. The Commission also filed one of the lawsuits decided in the Bostock. That case, which dealt with a transgender employee's clothing preferences and subsequent termination, resulted in a more than $250,000 judgment against the funeral home that fired her.

Conclusion

What employers should know is there are many different gender identities and they are all under a protected class under Title VII. And the EEOC's interpretation of Title VII protection after Bostock has made is that much easier for an employer to fall out of compliance and susceptible to litigation.

We recommend you review your antidiscrimination policies and employee handbook to address the EEOC's new enforcement positions. If you have any questions related to the laws protecting LGBTQ+ workers, reach out to your Kelley Drye contact for guidance.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.