LGBTQ+ Employees & Workplace Protections

The Supreme Court established last year in Bostock v. Clayton, County Georgia, that discrimination because an employee is gay or transgender violates Title VII. This violation stems from the fact that discrimination on one of those bases is discrimination “because of sex.” Therefore, employers cannot discriminate against members of the LGBTQ+ community. To best fight discrimination in the workplace, it is necessary to create an inclusive environment.

Best Practices

Now is the time to make adjustments to employment policies to ensure an inclusive environment. Here are suggestions for how to update policies and procedures to protect LGBTQ+ employees.

• First, review existing harassment, discrimination, and equal employment opportunity documents and update if necessary to ensure they encompass protections for LGBTQ+ individuals when considering “sex” as the motivating characteristic.
• Second, consider the impact of other policies that are not as clearly linked to discrimination on LGBTQ+ employees including dress code and healthcare practices.
• Third, reevaluate the application process with inclusion in mind. For example, ensure all gender identities are represented if asking applicants to select a gender.
• Fourth, consider current complaint protocols. There should be multiple avenues to report issues that employees experience. This will allow an employee to confide in a trusted individual increasing reporting so employers can fix the issue in a timely fashion.
• Fifth, enact interactive training to allow employees to understand the new policies more inclusive of LGBTQ+ employees and rebut any existing prejudices employees possess.

Remaining Considerations

Despite this step forward for equality, there are still a few questions remaining. First, it is not clear how the Bostock decision’s protections for LGBTQ+ individuals impacts religious freedoms. Religious employers are subject to limited Title VII requirements because of constitutional and the Religious Freedom Restoration Act (“RFRA”) exemptions. Therefore, it is not clear what the interplay is between Bostock LGBTQ+ protections and existing religious exemptions. Additionally, the Court did not make a ruling on the provision of separate bathrooms and locker rooms for gender. This could be an important part of inclusion for transgender employees and education for all employees.

Get Legal Help

If you faced harassment or lost your job because of your sexual orientation, we can help. At McOmber McOmber & Luber, we take a proactive approach to each and every legal issue our clients face. Call our Red Bank office at 732-842-6500, our Marlton office at 856-985-9800, our Newark office at 973-878-9040, or contact us at 888-396-0736 or online for a free consultation.