Federal employment protections for LGBTQ+ individuals have greatly expanded over the past four years. While the U.S. Equal Employment Opportunity Commission (EEOC) remains committed to preventing workplace discrimination based on sexual orientation or gender identity, this area of the law keeps evolving. You might feel overwhelmed or confused by rapidly changing and sometimes contradictory developments. But we’re here to help. We’ve compiled a robust list of resources to help you create work environments that are diverse, inclusive, and legally compliant.
Protecting LGBTQ+ Workers From Discrimination & Harassment
Landmark Supreme Court Ruling
The modern approach to supporting LGBTQ+ workers begins with the Supreme Court’s Bostock decision. In 2020, SCOTUS ruled that federal law prohibits employers from discriminating against employees based on their sexual orientation or transgender status. As a result, employers nationwide who are subject to the federal Title VII law must take proactive steps to protect LGBTQ+ employees from workplace discrimination – or risk facing a discrimination claim. Click here for a full recap of Bostock and what it means for employers.
Subsequent Agency Action
Since Bostock, the EEOC has been taking steps to expand workplace protections for LGBTQ+ individuals. In 2021, the EEOC developed resources and issued new guidance on sexual orientation and gender identity discrimination in the workplace. That guidance, for example, states that employers may not discriminate against an employee because they do not conform to sex-based stereotypes about traditional feminine or masculine behavior. Here are five employer takeaways.
Recent EEOC Guidance
Earlier this year, the EEOC released enforcement guidance that includes broad protections for LGBTQ+ workers and clarifies what may constitute harassment in the modern workplace. For example, the EEOC states that denying an employee access to a bathroom consistent with the individual’s gender identity could support a workplace harassment claim under federal law. You should consider refreshing your harassment-prevention policies, procedures, and trainings. Read here for more about the guidance and what to expect next.
Check State and Local Laws
Many states and localities have anti-discrimination laws that vary in scope from federal law. Title VII’s LGBTQ+ protections apply nationwide regardless of state or local law. But you will need to determine whether your business is subject to any state or local laws that provide broader workplace protections than those provided in Title VII. And if Title VII does not apply to you because you have fewer than 15 employees, you could potentially be subject to state or local anti-discrimination laws that have a lower employee threshold.
Making Your Workplace a Safe and Supportive Place for LGBTQ+ Employees
Enhance Your DEI Efforts
Diversity, equity, and inclusion (DEI) efforts can benefit underrepresented groups of individuals as well as your business. Here’s a six-step guide to utilizing DEI to grow your workforce.
Foster a Diverse and Inclusive Work Environment
It remains more important than ever for employers to take appropriate steps to create and sustain a diverse and inclusive work environment, including protecting LGBTQ+ employees from discrimination and harassment. Last year, the EEOC filed a lawsuit (which ultimately settled) against a New York restaurant, claiming that the employer subjected a former employee to a hostile work environment based on his transgender status. Learn more about the first-of-its-kind lawsuit and three best practices for creating an inclusive work environment.
Use Employees’ Requested Pronouns
The EEOC takes the position that intentionally and repeatedly using the wrong pronouns to refer to LGBTQ+ employees may support an actionable Title VII claim. By referring to employees by their preferred names and gender pronouns, you can reduce your risk of discrimination claims and help advance a culture where employees are treated with dignity and respect. Here are three best practices for employers.
Create a Plan for Supporting Transitioning Employees
As workplace policies and protections expand, transgender employees may feel more comfortable being their authentic selves at work. If you know that an employee is going through a gender transition, consider developing a plan that focuses on communication, education, and accommodation. Check out this employer guide on gender transitioning in the workplace.
Don’t Forget About Federal Protections for Same-Sex Marriage
In 2022, President Biden signed the Respect for Marriage Act into law, strengthening protections for same-sex couples by essentially codifying SCOTUS precedent. You must ensure that your workplace policies and benefit plan eligibility requirements align with current federal law and that your employees are trained on the same. Learn more about the Respect for Marriage Act and its impact on the workplace.
Conclusion
We will continue to monitor any developments, so make sure you are subscribed to Fisher Phillips’ Insight System to get the most up-to-date information directly to your inbox. To learn more about how can create a work environment that is inclusive and legally compliant, please contact your Fisher Phillips attorney or the authors of this Insight.
About the authors:
Sheila Abron (Willis) is a Partner in the Columbia office and Co-Chair of the Firm’s Affirmative Action and Federal Contract Compliance Practice Group. She is committed to finding practical, real world solutions to her clients’ employment law needs. She represents companies—large and small—as they navigate employment issues related to hiring, discipline, investigations, employment discrimination, unemployment, and other related issues. Sheila provides guidance to higher education institutions on Title IX Compliance and investigations She has extensive experience providing compliance advice to federal contractors on affirmative action and OFCCP regulations and audits. Sheila also has extensive experience working on collective actions under the Fair Labor Standards Act (FLSA) and class actions under wage and hour state laws. Sheila also provides training for supervisors and managers on harassment, Equal Employment Opportunity (EEO) compliance, the Family Medical Leave Act, diversity and inclusion, and many other areas.
Emily Litzinger understands the impact employment litigation can have on a business, and she partners with companies to minimize liability and reduce risk with preventative strategies focused on compliance, training, and the implementation of best practices.
When workplace disputes arise and litigation cannot be avoided, these same companies call on Emily to represent them throughout every phase of the adversarial process. She has defended employers in workplace conflicts over the past 12 years and has successfully represented large and small businesses in a wide range of disputes including non-competition, breach of contract, FMLA/ADA, wage and hour, sexual harassment and retaliation.
Jeff Shapiro brings a deep understanding of the law with a steadfast commitment to helping employers mitigate risk while at the time same fostering safe, diverse and inclusive workforces. He has a demonstrated track record of success over more than 25 years, both in-house and in private practice, counseling and defending employers on a wide range of labor, employment and safety matters, including with respect to Title VII, the Americans with Disabilities Act, the Family and Medical Leave Act, the Age Discrimination in Employment Act, the Fair Labor Standards Act, the National Labor Relations Act, and the Occupational Safety & Health Act. As a seasoned litigator, his unique systems-thinking approach delivers sound, risk-based guidance to employers for more informed choices in furthering their business objectives.