It has been nearly a year since the United States Supreme Court held in its June 2020 landmark case Bostock v. Clayton County, Georgia that harassment and discrimination based on gender identity, gender expression, and sexual orientation is unlawful sex discrimination. In its decision, the Court effectively expanded the definition of “sex” under Title VII of the Civil Rights Act of 1964 to include gender identity, gender expression, and sexual orientation.
Since the definition of sex discrimination was expanded, we have witnessed a rise in sex-based harassment and discrimination claims, specifically relating to LGBTQ issues in the workplace. For example:
- The U.S. District Court for the Eastern District of Virginia held in Monegain v. Virginia. DMV that plaintiff employee had a valid claim under Title VII for sex discrimination where plaintiff, a transgender female, was forced to abide by a special dress code at work created for plaintiff alone.
- The U.S. District Court for the Northern District of Illinois held in Jimenez v. Laborer's Welfare Fund of the Health & Welfare Dept. of the Constr. & Gen. Laborers' Dist. Council of Chi. & Vicinity that an employer may be liable for sex discrimination under Title VII for an insurance company’s failure to afford health insurance to the same-sex spouse of plaintiff employee.
- The U.S. District Court for the Western District of Virginia upheld plaintiff employee’s claims of gender stereotype nonconformity discrimination and sexual orientation discrimination under Title VII in Sarco v. 5 Star Fin., LLC where plaintiff was subjected to degrading comments, forced to obey rules not applied to the rest of the office, and denied benefits received by other employees.
These cases only touch the surface of recent claims brought for sex discrimination under Title VII. The Equal Employment Opportunity Commission (EEOC) considers the following to be forms of sex discrimination:
- Offering a job to an applicant who initially presents as one sex but rescinding the offer when the employer learns that the applicant plans to or transitions to the other sex;
- Taking an adverse employment action against a transgender individual because the person is transgender or because the person expresses an intention to transition from one sex to another;
- Refusing to allow a transgender individual to use the restroom appropriate for the gender the individual identifies with;
- Failing or refusing to use a transgender employee’s correct name and pronoun if such conduct is sufficiently severe or pervasive enough to create a hostile work environment;
- Treating an employee differently for associating with (including dating or marrying) a person of the same sex;
- Treating an employee differently for failing to conform to gender-based stereotypes, such as the expectation that individuals should only be attracted to a person of the opposite sex.
It is essential that employers consider implementation of best practices to ensure their workplaces are clear of such discrimination.
To begin, employers should update existing Harassment and Discrimination policies to include zero tolerance of harassment and discrimination of any kind, including gender identity, gender expression, and sexual orientation. Employers may also consider creating a “Gender Transition in the Workplace” policy. Proactive employers will retain this policy before the need for it even arises in the workplace. Such policies should be accessible to all employees and redistributed to employees whenever it is updated.
Employers should also provide training on gender identity and transgender-related issues to employees. This training may be included with typical harassment and discrimination training, but again, proactive employers will provide such training as soon as possible. Employees should be educated on addressing coworkers with preferred pronouns, and key terms related to sex and gender should be identified and explained. Best practices include requiring employees to sign and submit signed acknowledgments of receipt, review, and understanding of the training and company policies.
Employers are encouraged to take these steps as soon as possible to avoid any claims of sex discrimination under Title VII. It is important that employers maintain a zero tolerance policy toward all forms of discrimination prohibited under Title VII, including the expanded definitions of sex discrimination.
If you have any questions or are in need of assistance in updating your Employee Handbook, please contact one of the attorneys in our Employment Law Group at 1-888-488-2638.