The U.S. Supreme Court will soon hear oral argument in a trio of cases to resolve a circuit split over whether Title VII protects LGBT employees against discrimination.
The cases of Bostock v. Clayton County, Georgia and Altitude Express Inc. v. Zarda were consolidated and will address “whether discrimination against an employee because of sexual orientation constitutes prohibited employment discrimination ‘because of . . . sex’ within the meaning of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2.”
Meanwhile, the third case, R.G. & G.R. Harris Funeral Homes Inc. v. EEOC, presents the issue of “whether Title VII prohibits discrimination against transgender people based on (1) their status as transgender or (2) sex stereotyping under Price Waterhouse v. Hopkins, 490 U. S. 228 (1989)
House Passes Equality Act
Upon recognizing the lack of clear precedence that employers face given the various rulings and absence of a specific prohibition against discrimination based on sexual orientation and gender identity, the U.S. House of Representatives passed the Equality Act in May 2019. Similar legislation has been proposed in every Congress since 1994 except for one. Although many states and local governments have already passed laws prohibiting discrimination based on sexual orientation and/or gender identity, many have not.
Despite the uncertainty that employers face in many jurisdictions—and especially those with operations in multiple states—employers across the country have proactively taken steps to make their workplaces friendly to and inclusive of LGBT employees. Many employers have done so simply because “it’s the right thing to do.” Others have done so in an effort to comply with the EEOC’s positions. Regardless of the reason, in return for these steps toward inclusiveness, most companies have also seen a noticeable benefit to their bottom line.
Policies Benefit All
Having a LGBT friendly workplace also helps attract and retain talent and access potential employees which they would not have previously identified absent their employment of a LGBT employee who touts the employer’s policies. The majority of Fortune 500 companies have enacted some variation of policies and practices that prohibit discrimination against sexual orientation and/or gender identity regardless of their locale.
The range of possibilities is quite broad and many can be implemented at no cost to the employer. One of the first and easiest steps toward achieving this goal that an employer can take is to establish a written policy prohibiting discrimination based upon sexual orientation and gender identity. This can be accomplished through a broader diversity and inclusion effort or by amending existing non-discrimination policies. Responsibility for the execution of these policies can be placed with the human resources or diversity and inclusion department.
Other ways to be more inclusive is to extend benefits to same-sex couples ranging from the most basic benefits regarding health insurance and medical leave to more creative options. Additional and non-traditional benefits include the coverage of fertility treatments and adoption or surrogacy expenses to enable these individuals to start or add to their family.
Larger employers may establish affinity groups which are open to all employees, including those who identify as heterosexual. Affinity groups can help connect employees who otherwise would not be in contact either due to geographical differences or simply not knowing a co-worker identifies as LGBT.
Others have implemented a practice of including gender pronouns in e-mail signature lines. For example, there is an expanding practice of adding (she/her/hers), (he/him/his), (they/them/theirs) or (zie/zim/zir) to the signature block. In fact, this practice is utilized by retail establishments across the country. Including pronouns for all normalizes the practice and shows open-mindedness and acceptance both internally and externally.
Not only can such specification assist with simply knowing how to address an individual with an ambiguous name, it also makes clear that the individual and company are open and accepting of those who do business with the company or who seek to become employed or conduct business.
Lots of Support
Those employers who want to further promote equality apart from the workplace can also sponsor or participate in local events that support LGBT awareness. Companies can further help drive change by supporting lobbying efforts at the state and federal level. The sheer number of companies who have filed or joined in amicus briefs in favor of equal rights demonstrates that regardless of the outcome of the cases pending before the Supreme Court, most companies support their employees.
No matter what changes an employer implements, training on newly implemented policies and benefits is key. As a company progresses through the stages of embracing workplace equality for all employees, it is wise to survey the environment through the eyes of an LGBT employee.
Other opportunities for change may become apparent, including support groups for transitioning employees and alternate bathroom configurations. Regardless of how the pending cases are decided, the state of the law remains in transition and best practices will continue to be driven by other factors such as corporate culture, economics, and the expansion of cultural norms.
This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.
Ashley Eley Cannady is a partner in Balch & Bingham’s Labor & Employment practice. She focuses on labor and employment litigation, providing advice to employers on all areas of work-related legal exposure, and business litigation.