Supreme Court Ruling, LGBT Discrimination and Implications for your Business

Staying informed about employee rights in the workplace is vital to the success of your business.  Lawsuits brought about claiming unfair labor practices or discriminatory violations will prove costly and can have dire consequences as your company is faced with rebuilding during the pandemic.  It will be important to build your team with knowledgeable partners to help you navigate the unchartered legal waters of today.

Recently the United States Supreme Court ruled that Title VII will prohibit discrimination based on LGBT status, and an employer who refuses to hire, fairly compensate or discriminate against any individual based on their protected traits including sex can be held liable for such actions.  The court concluded an employer’s discriminatory actions against a homosexual or transgender employee involves an employer’s treatment of an individual for actions or attributes it would tolerate if the individual was of another sex, therefore such discrimination is included in the scope of “sex” and prohibited.

“An employer who fires an individual merely for being gay or transgender defies the law,” Justice Neil M. Gorsuch wrote for the majority in the 6-to-3 ruling.  Until Monday’s decision, it was legal in more than half of the states to fire workers for being gay, bisexual or transgender. The vastly consequential decision thus extended workplace protections to millions of people across the nation.  That opinion and two dissents, spanning 168 pages, touched on a host of flash points in the culture wars involving the L.G.B.T. community — bathrooms, locker rooms, sports, pronouns and religious objections to same-sex marriage. The decision, the first major case on transgender rights, came amid widespread demonstrations, some protesting violence aimed at transgender people of color.  "Today," Gorsuch said, "we must decide whether an employer can fire someone simply for being homosexual or transgender. The answer is clear." He found such discrimination is barred by the language in the 1964 law that bans discrimination in employment based on race, religion, national origin or sex.

At the end of his 33-page opinion, however, Gorsuch invoked several potential caveats.

He noted, for instance, that some employers might have valid religious objections to hiring gay or trans-workers. But he added that worries about how the 1964 civil rights law "will intersect with religious liberty are nothing new," pointing to the 1993 Religious Freedom Restoration Act as a "super statute" that may offer a potential lifeline to employers who object, on religious grounds, to hiring gay and trans-individuals.

Although 93% of Fortune 500 companies have non-discrimination policies that include sexual orientation with 91% of them having policies that include gender identity; 20% of LGBT employees have claimed that they have experienced discrimination based on sexual orientation or gender when applying for jobs.  Offensive jokes based on sexual orientation or gender identity are a form of harassment.  Over half of LGBT employees stated they have heard lesbian and gay jokes at work.  Transgender workers are subject to different types of harassment than LGB workers. This includes bathroom accessibility, being deliberately referred to by incorrect pronouns, and having to tolerate inappropriate questions, which can lead to employee disengagement and avoidance.

Companies will need to understand The Employment Non-Discrimination Act (ENDA) which will protect LGBT people from being fired simply for their perceived sexual orientation.  Partner coverage on health benefits will be the rule, not the exception and same-sex parents as well as their children will receive the same societal, legal and employer support that other families receive.  The benefits and privileges that are afforded to married couples will be available to same-sex couples.

In order to comply with the law and defend against discrimination suits, employers should:

·         Communicate with employees and create a work culture and environment for employees that encourages diversity and discourages employment discrimination in any form.

·         Adopt a strong anti-harassment policy which complies with the Court’s ruling so that there is a clear explanation of what is prohibited, a complaint procedure that provides multiple, accessible avenues of complaint; assurance that the employer will protect the confidentiality of complaints to the extent possible; a complaint process that provides a prompt, thorough, and impartial investigation; and assurance that the employer will take immediate and appropriate corrective action when it determines that harassment has occurred.

·         Update employee handbooks and ensure that all employees are aware what the law prohibits.

·         Periodically train each employee on its contents, and vigorously follow and enforce it. Provide periodic training to managers and employees on nondiscrimination, harassment, and retaliation policies and enforce such policies equitably.

Creating a consistent two-way communication with your employees to become aware of situations and create mutual trust and confidence.  Having a professional team to help lead the conversation guiding your employees to understanding and embracing their opportunities will be key to success.

Questco is there to help you rebuild your labor force through a plethora of HR Services such as: Payroll Services, Benefit Plans, Benefits Administration, HR Technology and Workers’ Comp & Safety Services.

Charlie Reeves, Senior Business Development Manager, has decades of experience in Human Resource Solutions.  He is one of the most senior members at Questco and recognized for helping clients of all sizes save money, improve labor efficiency and provide the strongest support for HR Services.  As an entrepreneurs himself, he has lived the long days and sleepless nights on the road to success.  He brings the skill and scale to support you in the pursuit of your goals.  For more information on payroll services, benefit plans, benefits administration, HR technology, workers’ comp and safety services email Charlie.Reeves@questco.net or contact him directly at 936.521.5841.