In June of 2020, the Supreme Court held in its landmark case Bostock v. Clayton County, Georgia that “harassment and discrimination based on gender identity, gender expression, and sexual orientation is unlawful sex discrimination.”  Gender identity refers to the gender an individual identifies with, while gender expression refers to an individual’s gender-related appearance or behavior.  Sexual orientation refers to what gender(s) an individual is sexually or romantically attracted to.  As a result of the Supreme Court’s decision in the above-referenced case, the LGBTQ community is recognized as a protected class under the color of federal law.  However, states take differing approaches regarding the issue of protection afforded to the LGBTQ community.

Over twenty states including Delaware, Maryland, New Jersey, New York, Virginia, and the District of Columbia prohibit private employers from discriminating based on sexual orientation and gender identity or expression.  Pennsylvania law does not specifically prohibit discrimination based on sexual orientation and gender identity or expression, but Executive Orders prohibit discrimination based on sexual orientation and gender identity and expression against employees of Pennsylvania state agencies and employees of private employers that contract with the state or receive state grants.  While the states of Georgia and West Virginia do not have statutes prohibiting discrimination based on sexual orientation and gender identity or expression, employers should be sure to stay compliant with local ordinances.

As with all manner of discrimination and harassment, gender discrimination applies to all facets of the employment relationship from application to termination.  Gender harassment may be either sexual or non-sexual, as well as verbal or non-verbal in nature.  Gender harassment takes on a variety of forms, including discriminating against an applicant on the basis of sexual orientation, firing an employee for being gay or transgender, or engaging in offensive and unwelcome conduct towards an employee based on sexual orientation, gender identity or gender expression.

Because federal law and many state laws provide protection from discrimination and harassment on the basis of sexual orientation and gender identity or expression, employers should implement best practices in the workplace.  Best practices include reviewing existing policies and practices to ensure compliance for all applicants and employees, updating Employee Handbooks to include Anti-Discrimination and Anti-Harassment policies based on sexual orientation and gender identity or expression, and providing training on gender-related harassment and discrimination.  Additional best practices include avoiding stereotyping individuals based on gender, avoiding forcing personal opinions regarding gender on others, and engaging in conscientious and respectful behavior at all times.

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.