As everyone should be aware, this week, the U.S. Supreme Court held that Title VII of the Civil Rights Act of 1964, as amended, prohibits covered employers from discriminating against employees or applicants on the grounds of sexual orientation, sexual identity, and transgender status. This is a pretty big deal in the employment law world and presents a new legal compliance issue for many employers in states that do not offer legal protections to LGBTQ workers.
Who are covered employers? Generally, they are businesses with 15 or more employees, including part-time and temporary workers. And Title VII is a federal law, so it will apply to covered employers regardless of what state they are in.
While many people welcomed the Supreme Court’s decision, a review of social media also reveals that there are those who are very adamantly opposed to it. So what is an employer to do with employees who are opposed to LGBTQ rights in the workplace or simply don’t want to work with LGBTQ co-workers?
We start with words: An employer covered by Title VII should review its employment policies and ensure that all Equal Employment and Anti-harassment policies and procedures include sexual orientation, sexual identity, and transgender status as covered characteristics. The company should disseminate the revised policies and procedures to all employees and and collect an acknowledgment of receipt of the revised policies from each and every employee.
Next we look at actions: Any and all training on Equal Employment and Anti-harassment policies and procedures should include the new covered characteristics. That training should emphasize the employer’s lack of tolerance of discrimination or harassment based upon any and all of the protected characteristics listed in its polices and covered by federal, state, or local law. And the most important action is this–if an employer becomes aware that one of its employees is discriminating against or harassing another employee on the basis of any protected characteristic, the employer has a duty to investigate and take prompt, effective, remedial action. That means that if an employee has been making anti-gay slurs, that employee needs to be counseled and disciplined. If an employee refuses to use another employee’s chosen pronouns, the recalcitrant employee needs to counseled and disciplined.
What makes this situation more challenging is the “religion factor.” Some folks will assert that homosexuality or using a gender identity or gender expression different from the one assigned at birth is “against their religion.” In Title VII, there is a certain tension between prohibiting discrimination and requiring religious accommodation. There are pending cases in which the courts must sort out how religious institutions can deal with these issues. However, in a private employment setting, it is highly unlikely that the EEOC and the federal courts are going to interpret Title VII as allowing employees to harass or refuse to work with other employees because they are gay or transgender as a “religious accommodation.”
The bottom line is this: if a covered employer wants to avoid liability under Title VII, it simply cannot tolerate anti-gay or anti-trans comments, harassment or actions in the workplace, as it should not tolerate other forms of discrimination and harassment. Employees must understand that they must treat each other with respect, and that there are consequences if they fail to do so.
Kathleen J. Jennings is an attorney licensed to practice law in Georgia and New York. She graduated from Cornell University, College of Arts & Sciences, with distinction and New York University School of Law. She is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. and defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at firstname.lastname@example.org.
©2020 Kathleen J. Jennings
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