Employment Issues Related to LBGTQ Employees Following Bostick by Ted T. Storer
Every employer faces challenges to meet the market demands to retain good employees and the legal obligations governing that relationship. This year continues to be a challenging year for employers for a number of obvious reasons, primarily COVID-19. In June, the United States Supreme Court issued a decision that clarifies a socially sensitive issue on what discrimination based on sex (or gender) means. Title VII was enacted to prevent discrimination in employment based on race, color, religion, sex and national origin. In recent years, there has been a debate about whether Title VII protected lesbian, gay, bisexual, and transgender. (“LBGT”) employees.
In Bostick v. Clayton County, Georgia, the United States Supreme Court granted protection from employment discrimination to the LBGT community. The newest supreme court appointee, Justice Gorsuch, found that an adverse employment action taken against an LBGT employee necessarily was based on the sex of the employee, and was therefore covered by Title VII. For those of us who live in Indiana, Illinois, and Wisconsin – states covered by the U.S. Seventh Circuit Court of Appeals – this decision is consistent with the Hively v. Ivy Tech case which was issued in 2017. In Hively, the Seventh Circuit held that discrimination based on sexual orientation was protected by Title VII. Furthermore, Bostick appears to be a logical extension of Oncale v. Sundowner Offshore Services, Inc., where the Supreme Court said in 1998 that same-sex harassment was protected by Title VII.
For most employers, Bostick seems to provide a bright-line. Employers should not make any adverse employment decisions due to the sexual orientation of employees. Employers should also be cognizant that benefits are provided to all employees. Employers should review their policies and plans, even those purchased from third party vendors. Benefit plans may need to be amended to include same-sex spouses and other gender-neutral terminology. There may also be issues about health insurance, disability, or time off policies providing benefits for gender-identity or gender-affirmation procedures.
These concerns will continue to be an issue at a time when some employers seek to protect their own strongly held beliefs based on religious grounds. Recent Supreme Court decisions have allowed employers to reject health insurance plans that provide for procedures that go against their religious beliefs under the Affordable HealthCare Act (often referred to as Obamacare). The Supreme Court has also issued decisions recently that expand the scope of the ministerial exemption for religious employers – primarily church-based parochial schools.
Regardless of the clarification provided in Bostick, employment issues related to LBGT workers will continue to develop. If you have any questions about your employment policies, please reach out to your Beers Mallers lawyer to discuss your policies and practices to make sure that they are compliant with both state and federal laws.
