Following years of contradictory decisions at the appeals court level, the U.S. Supreme Court agreed to settle the question of whether Gay and transgender employment rights are protected by federal civil rights law.
A series of cases involving Gay employment rights have been making their way through various federal Courts of Appeal throughout the country, with most finding in favor of the Gay employees.
Gay rights legislation is hung up in Congress and at present only 24 states have passed their own laws guaranteeing employment rights. However, many large corporations have chosen to adopt inclusive policies that protect the Gay workers within their corporate ranks. This extends to international companies that do business in the United States.
Also, President Trump signed an executive order extending President Obama’s earlier directive requiring that the federal government and its contractors and subcontractors (an estimated 15% of American businesses) adhere to protections for Gay employees.
In fact, at a time when it looked like the Supreme Court might not decide to take up the issue, employment attorneys were still advising businesses to develop their own Gay anti-discrimination policies because of the way current trends are heading (AA, 10-15-18, P. 5).
The Supreme Court may be arriving late to the party, but its guidance could prove to be significant.
At issue is Title VII of the of the Civil Rights Act of 1964, which prohibits discrimination based on religion, national origin, race, color and “sex.”
The argument is over whether the ban on discrimination by sex refers only to gender – discrimination against someone because they are a man or a woman – or if this includes Gays.
Although the Trump Department of Justice maintains the legal position that Title VII does not extend to Gays, the opposite position has been taken by the Equal Employment Opportunity Commission.
EEOC argues that its position stems from its earlier policy banning discrimination based on gender stereotyping – where a male employee is bullied for being too effeminate or a female employee for being seen as too masculine. This commission’s policy has been consistently upheld by the courts.
EEOC concludes that its position on sex stereotyping logically leads to the conclusion that, if someone is discriminated against because they are perceived as Gay, then it also must be considered illegal to discriminate against those who are Gay.
The High Court has agreed to review three cases where federal Appeals Courts have chosen to take different positions on this issue. The three cases are:
1. Zarda v. Altitude Express, Inc. The Second Circuit Court of Appeals held that Title VII prohibits discrimination based on sexual orientation in a case involving a Gay employee. The employer appealed.
2. Bostock v. Clayton County. The Eleventh Circuit Court of Appeals held that Title VII does not ban discrimination based on sexual orientation in another case involving a Gay employee. The employee appealed.
3. EEOC v. R.G. & G.R. Harris Funeral Homes, Inc. The Sixth Circuit Court of Appeals concluded that Title VII prohibits discrimination based on gender identity in a case where an employee was fired while transitioning from a male to female identity. The employee appealed.
Most legal observers do not expect the Supreme Court will render a decision until later this year at the earliest, and perhaps as late as June 2020 – which would be smack dab in the middle of the Presidential campaign season.
What should employers do in the meantime? Amy Epstein Gluck, an attorney with the law firm of FisherBroyles, says employers should take several steps to make sure they won’t face future legal liability, even in those states that don’t ban Gay employment discrimination.
“Rest assured that the EEOC will continue investigating employees’ claims of sex discrimination, based on its interpretation of what that term means,” she warns. “Thus, employers want to continue their best practices and comply with their own state laws.”
Epstein Gluck recommends that employers make sure that anti-discrimination and anti-harassment policies in employee handbooks include a prohibition against sex stereotyping. This policy also must be disseminated throughout the workplace and updated as needed.
Provide regular, interactive training to your employees, supervisors and humans resources staff, too, so that they can recognize, respond to and prevent unlawful discrimination and harassment based on sex stereotypes, she says, including giving examples, fact-based scenarios and pop quizzes.