After ‘Bostock’: Practical Implications for LGBTQ+ Employees in the Workplace

October 28, 2020Articles The Legal Intelligencer

On June 15, the U.S. Supreme Court decided Bostock v. Clayton County, Georgia, 140 S.Ct. 1731. Widely celebrated in the lesbian, gay, bisexual, transgender, and queer/questioning plus (LGBTQ+) community, Bostock confirmed that federal law bars employers from discriminating against employees on the basis of sexual orientation or gender identity/expression.

Bostock’s historic nature is beyond dispute. Still, the question remains: what are its practical implications in the everyday workplace?

A Shared Vocabulary

To discuss Bostock and its practical effects meaningfully, we must first establish an inclusive, shared vocabulary.

“Sex” refers to the sex an individual is assigned at birth, which is usually (but not always) assigned based on a newborn’s anatomical characteristics. “Gender,” in contrast, refers to a socially-constructed concept relating to identity. “Sexual orientation” refers to an individual’s sexual or romantic attraction, with reference to the sex of both an individual and their partner. “Gender identity” refers to an individual’s deeply held sense of self in relation to the concepts of sex and gender. “Gender expression” refers to the way an individual outwardly presents their gender or gender identity and may involve both physical and social characteristics.

Someone who is “cisgender” has a gender identity that is consistent with their sex assigned at birth. Someone who is “transgender” has a gender identity that differs from their sex assigned at birth. The word “transgender” is an adjective—e.g., “a transgender person”—and should be used as such instead of describing a person as “a transgender” or “transgendered,” which are pejorative terms that can be harmful. Transgender people may suffer from “gender dysphoria,” which is a serious medical condition that arises from the distress of not having one’s gender identity respected or recognized socially or governmentally.

It’s important to note that sexual orientation and gender identity/expression are not strictly binary concepts. Instead, many people’s sexual orientation and gender identity/expression is fluid or nonbinary, existing on a spectrum of identity instead of at any fixed point.

It’s equally important to note that our shared vocabulary in discussing these issues must be dynamic, not static. As we advance our understanding over time, our vocabulary should evolve to reflect greater inclusivity.

An Historic Decision

The Supreme Court’s opinion in Bostock decided consolidated appeals from the U.S. Courts of Appeal for the Second, Sixth and Eleventh Circuits. In each case, an employee had been terminated from employment because of their sexual orientation or gender identity. The employees argued that their terminations violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. Section 2000e, et seq., which prohibits employers from discriminating against employees because of, inter alia, the employee’s sex.

Among other points, the employees argued that sexual orientation and gender identity/expression were inseparable from the concept of “sex” under Title VII, and therefore Title VII’s prohibition against sex discrimination necessarily encompassed employment discrimination based on sexual orientation or gender identity/expression. The employees’ arguments persuaded the Second and Sixth Circuits; however, the Eleventh Circuit rejected them.

The Supreme Court held that discriminating on the basis of sexual orientation or gender identity/expression constitutes prohibited sex discrimination. In a 6-3 opinion, the court held unequivocally that the plain text of Title VII demanded this result, because sexual orientation and gender identity/expression are “inextricably bound up with sex,” and that discriminating on these bases “requires an employer to intentionally treat individual employees differently because of their sex.” That is, it is “impossible” for an employer to discriminate against an employee for being gay or transgender without taking the employee’s sex into account.

In short, Bostock means that covered employers: must not take adverse action against employees on the basis of the employee’s sexual orientation or gender identity/expression, and must provide LGBTQ+ employees with equal access to the terms, privileges, and benefits of employment as non-LGBTQ+ employees.

Practical Effects

Bostock confirms that employers who did not previously have LGBTQ+ inclusive workplaces have some needed catching up to do—and quickly.

One place to start is by conducting a thorough internal audit of policies and procedures. Employers should revise their equal employment opportunity and nondiscrimination policies to prohibit discriminatory workplace conduct based on sexual orientation and gender identity/expression. Nondiscrimination and harassment prevention trainings should include particular education relating to these concepts as applied to LGBTQ+ employees.

Ongoing training and education is crucial for everyone, but particularly for Human Resources employees, supervisors, and an employer’s top leadership. Training and education on these issues should be substantive and meaningful—not perfunctory—and the goal should to be inscribe equity and inclusion into the organization’s DNA.

Employers should also ask whether they are providing inclusive benefits: what do the parental leave policies cover in cases of adoption, fostering, and surrogacy? Is the amount of leave provided based (whether explicitly or implicitly) on nonmedical, gendered distinctions? Are health insurance and prescription drug benefits inclusive of the needs of transgender employees?

Similarly, employers should carefully scrutinize their recruitment, promotion and leadership structures with inclusive eyes. Employers should take care to remove conscious or unconscious stereotyping about LGBTQ+ people from formal and informal processes. This means taking steps to eliminate the “old boys’ club,” promote inclusion in work and work-related social settings, and ensure that LGBTQ+ people are included in the promotion pipeline and top leadership positions.

Some employers maintain gender binary-specific dress and grooming standards, prescribing different appearances based on an employee’s perceived gender. Unless gender-differentiated dress/grooming standards are truly job-related and consistent with business necessity (and the strong presumption in most industries should be that they are not), these policies may be problematic. Instead, employers should consider adopting gender-neutral standards (such as “dress professionally” or “business casual,” etc.), and provide accommodations to employees as appropriate on a case-by-case basis.

Employers should also consider removing gendered distinctions in their onboarding process and internal paperwork generally where such distinctions have no relation to job requirements or business necessity.

Moreover, it’s important to refer to employees by their own self-identified names and pronouns in correspondence, personnel files, and matters of identification to the greatest extent possible. Doing so is a matter of fundamental respect in the workplace that recognizes the dignity and humanity of each employee. Not doing so may expose employers to liability for harassment—particularly where an employee is repeatedly and intentionally mis-named or mis-gendered.

Employers should consider adopting policies regarding employees who want to undergo a transition in the workplace. A number of organizations, including the Transgender Law Center, provide excellent resources and recommendations on how to do so effectively and cooperatively, in ways that emphasize the value and dignity of transgender employees.

These recommendations are not exhaustive; rather, they’re merely a sampling of the practical measures employers can (and should) take proactively to comply with Bostock. Indeed, even LGBTQ+ friendly workplaces should view this decision as an opportunity for continued improvement.

Unanswered Questions

While Bostock established a broad, general framework, it did not decide all Title VII questions about LGBTQ+ employment discrimination. Particular nuances of these issues are likely to be the subject of litigation in federal court at all levels in the years to come. Still, the court explicitly reserved judgment on at least two notable questions.

First, the court stated that it was not deciding the Title VII implications of sex-segregated facilities, such as bathrooms and locker rooms. Even so, both the U.S. Equal Employment Opportunity Commission and the U.S. Occupational Health and Safety Administration have issued guidance stating that employees should be permitted to use facilities consistent with their gender identity.

Second, the court declined (for now) to answer the question of whether the personal religious beliefs of a co-worker or supervisor provide an exemption from Title VII’s command of equal treatment of LGBTQ+ employees. This is of particular concern for LGBTQ+ employees. As of this writing, Seventh Circuit Judge Amy Coney Barrett awaits a confirmation vote for a nomination to the Supreme Court; Barrett has drawn criticism for her paid speaking engagements with the Alliance Defending Freedom, an organization which the Southern Poverty Law Center has designated as a hate group for its many bigoted positions toward the LGBTQ+ community.

These discrete legal questions remain unresolved as of today and may continue to be unresolved for many years. Separate from the question of legal compliance, employers should consider the business case for LGBTQ+ inclusion as well. A substantial (and growing) body of research demonstrates that there is a strong business case for employer inclusion, with inclusive employers more likely to recruit and retain talented employees (particularly among millennials and Gen-Z), more likely to have higher employee morale, and more likely to have increased productivity.

Put another way, employers should remember: equity and inclusion of LGBTQ+ employees isn’t just the law, it’s good for business.

Reprinted with permission from the October 28 issue of The Legal Intelligencer. (c) 2020 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.