In a key recent decision, Bostock v. Clayton County, 590 U.S. ___ (2020), the U.S. Supreme Court found, “An employer who fires an individual merely for being gay or transgender defies the law.” The Court reasoned, “An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.” Meaning, your organization violates federal employment law—and faces liability—by firing employees because they are gay, bi-sexual or transgender.
At least in Ohio, the Court’s decision mostly preserves the status quo. The EEOC and Ohio’s federal courts found several years ago that “sex” discrimination includes discrimination based on sexual orientation and gender identity. Additionally, many local anti-discrimination laws in Ohio explicitly prohibit discrimination based on sexual orientation and gender identity. That is why your organization’s policies may already prohibit discrimination based on sexual orientation and gender identity—and if they do not, then they unquestionably should now.
Still, even if your organization’s policies comply, it is important to review how those policies are carried out (i.e., your culture). Your employees—and especially your middle managers—must know that it is unlawful to fire, demote, or discipline employees for their sexual orientation or gender identity.
And about the bathroom issue? There been significant litigation and commentary related to bathroom access for employees that are transgender. The Court did not address it in this recent decision, saying it could be addressed in another case. But there are clues on how to respond: under the EEOC’s prior guidance and some federal case law, employers have been required to allow employees to use the restroom of their gender identity. This may be the best option for compliance at this time. This issue will continue to be litigated, and single-use, gender neutral bathrooms may be the safest option long-term.
The Court’s decision is undoubtedly an important one. Now is a good time to confirm that your organization’s policies and procedures explicitly prohibit discrimination based on sexual orientation and gender identity. It will hopefully be a review rather than a rewrite.
If you have any questions or concerns about your policies and procedures, or any other employment matters, then please contact experienced counsel.