What the Supreme Court’s landmark ruling that Title VII includes LGBTQ+ protections means for the workplace

Attorney Q&A with Jake Crawford

On June 15, the U.S. Supreme Court issued its landmark 6-3 decision that Title VII protects LGBTQ+ employees from discrimination on the basis of sex. The Court state Title VII’s prohibition against sex-based discrimination is “simple and momentous: An individual’s homosexuality or transgender status is not relevant to employment decisions.”

In this LINC Q&A video, McAfee & Taft employment lawyer Jake Crawford discusses the Supreme Court’s rationale for making this determination and what it practically means for employers.


Transcript

Q: What was the Supreme Court’s rationale for making this determination?

A: The Supreme Court’s decision was actually very straightforward, which I think surprised a lot of people, to be honest, but Title VII prohibits employers from discriminating against a person for five reasons. So there’s five protected categories. Those are race, color, religion, sex and national origin. And so what the Supreme Court said is that when Title VII says you cannot discriminate against a person because of their sex, that that means you cannot discriminate against them based on their sexual orientation and their gender identity. And the rationale there was, to use an example used by the court, if an employer terminates or fires a male employee because he’s attracted to other men. Well, the employer would allow that same characteristic — being attracted to men — in a female employee. So the only difference between the two is their sex — one’s male, one’s female. So, that was the rationale of the court. And so you’ll hear a lot of people say that this added additional protections in Title VII, which I think for all intents and purposes is correct, although the real way to view it is, it expanded a protected category that already existed: because of sex.

Q: Don’t most states already have laws prohibiting discrimination on the basis of sex? Does this Supreme Court ruling really change anything?

A: Yes, so this is a very common misunderstanding. Often we think, it’s 2020, I mean, haven’t most states already prohibited employers from discriminating against persons because of their sexual orientation or gender identity? And I think a lot of Americans would be surprised to learn, no, that’s not the case. Currently there are 21 states plus the District of Columbia and a couple territories that have outlawed or prohibited by state law an employer from discriminating on the basis of sexual orientation or gender identity, which means more than half of the states haven’t passed any laws saying that. And probably a bigger statistic to understand the scope and the impact and the significance of the Supreme Court’s decision is about a year ago, right as this case was coming to the Supreme Court, there was a study done that found that 52% of LGBTQ individuals live in a state that offers no protection from discrimination in the workplace. So, more than half of the LGBTQ individuals lived in a state that they could be fired because of their gender identity, an employer could refuse to hire them solely because of their gender identity or their sexual orientation. And so now, we jump from 48% of those individuals being protected to 100% being protected because Title VII is a federal law. So, that’s a long answer. The short answer is that the significance of the decision really can’t be understated.

Q: What practical issues should employers be concerned with beyond hiring/firing decisions based on sexual orientation or gender identity?

A: What you have to remember is Title VII is not limited to just hiring and firing decisions. Title VII says an employer cannot discriminate against an employee or an applicant because of sex. So that discrimination means any aspect of the employment, any terms and conditions of employment. So you cannot refuse to hire a person because of their sexual orientation. You cannot refuse to give someone a raise, a promotion because of sexual orientation. So, every aspect, really, of the workplace is going to be impacted by this. A big issue we’ve already seen come up in the last few years as this issue’s been played out in lower courts really is harassment in the workplace. And that’s a big issue that employers are going have to deal with. One of the biggest areas of harassment is pronouns. With an individual who says I’m going identify as a male, and before that had identified as a female, people will continue saying “she,” “her.”  And sometimes it’s a mistake, you know, “Hey, I didn’t mean to.” Often times people do it because they want to take their stance of I’m not going acknowledge the gender identity. Or you’re crossing into the realms of harassment in the workplace there. So, it really covers every aspect of employment, and it means employers are going have to be on guard for all of those issues.

Q: What steps should employers take in response to the Supreme Court’s decision?

A: The steps, I think, that employers should take: first, one, is you’ve got to revisit your policies. You’ve got to look at your policies.  I know earlier I talked a little bit about how this didn’t technically add any protective categories, it just expanded because of sex, but your policies need to say that the company will not tolerate discrimination on the basis of sexual orientation or gender identity. So, I think you need to revisit those policies. Another big thing is you need to train your employees, and on two different levels. One, you need to train all your employees, okay, this is our policies now, this is the law now. You cannot harass anyone, discriminate against anyone because of sexual orientation or gender identity. And then you also need to train your managers, and here’s why: managers are going have to be on the lookout for this type of discrimination. Like I said earlier, a big area is harassment. One of the ways we stop harassment is, one, we want people who see it or experience it to report it, but we also want managers to be able to identify it and step in and report it to HR or whoever needs to do the investigation. And so I think you really have to train managers to be able to identify gender identity discrimination or sexual orientation discrimination. Because you got to remember, this is an issue that for most states and for most employers, they didn’t really have to focus on before.  They probably should have been, or they definitely should have been, but they didn’t have to. So, now you’ve got to be proactive, train your managers, and stop any discrimination that may be happening before it turns into a bigger issue where somebody ends up being terminated or denied some term or condition of employment because of their sexual orientation, or gender identity. This is going to be a big issue of liability. The Equal Employment Opportunity Commission, this has been a pet project of theirs and a big issue for them for years. So, you’re going to see charges of discrimination filed, you’re going to see, and when you have charges filed or lawsuits filed, they’re going to start combing through your policies. What do your policies say? They’re going to ask how you trained your managers. They’re going to ask all that. So, I think it helps to have a consultant come in.  But another reason it helps is because there are practical questions that can’t always be answered in a policy. A manager may have a question of, “Okay, if I see this kind of activity, how do I respond to that, what do I do?” And those aren’t always addressed in policies, and so I do think companies would very much benefit from allowing their managers especially to have a discussion about what this means and how do we actually go about protecting these individuals.

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This Attorney Q&A has been provided for information of clients and friends of McAfee & Taft A Professional Corporation. It does not provide legal advice, and it is not intended to create a lawyer-client relationship. Readers should not act upon the information in this Q&A without seeking professional counsel.
LINC Q&A

Date
June 23, 2020