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Title VII Ruling & The LGBT+ Community: How Employers Can Ensure They Are In Compliance

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Sex is a taboo topic in most workplaces. People tend to avoid discussing it and even tend to lower their voices when updating people on mandatory sexual harassment policies. But we will need to get better at stepping out of our comfort zones on this topic due to the recent 6-3 ruling by the Supreme Court, holding that an employer may not discriminate against any individual because of their sex and that “the straightforward application of Title VII’s terms” means that “sex” includes different treatment based on one’s homosexuality or transgender status.

“If you own a business, you need to be paying attention and getting your part of this ruling right,” cautions Jon Nadler, an attorney with the law firm of Eckert Seamans, who represents employers at all stages of labor and employment law matters, including litigation in federal and state courts. He outlines actions to take to minimize the risk to the business, abide by the new ruling and protect your employees:

Read the actual ruling. Nadler highlights that the ruling itself is written in surprisingly easy to understand ‘plain English.’ Unlike most rulings, that can be bogged down in legal jargon, this one uses several examples to make it clear what is covered under the law. It’s a good starting point for anyone who wants to understand the implications behind this ruling. “Even if you don’t read the whole opinion, there are little nuggets throughout that are well written in communicating what’s covered and what’s not,” shared Nadler.

Update policies and handbooks immediately. “This truly is a landmark ruling and it’s hard to understate the importance of it. Business owners and HR leaders should not underestimate the importance of reviewing and changing policies and updating employee handbooks immediately.”

Provide quality training to staff and leadership. Nadler recommends conducting effective training that gets the point across to both rank and file employees and to management. Supervisors and managers have additional responsibility to address and remediate these issues. This should not be something left to an online piece that’s easy to click through and guess at multiple choices. Instead, finding a credible and thoughtful facilitator who can navigate the nuances that come with this territory is essential.

“For something like this, it’s really worth investing in in-person training,” recommends Nadler. “You want people to be able to ask questions and work through what all the gray areas are when it comes to how people work with one another. A good instructor can distill down all the details and make it practical.” This can help individuals understand how to minimize or eliminate risk for the organization and be aware that they could have personal liability based on how they choose to treat those they work with.

Recognize that this new ruling covers both sexual orientation and gender identity. Just as Title VII protects against sexual harassment that includes discrimination, retaliation and a hostile work environment, the LGBTQ community is now afforded the same level of those protections. Employers need to get a deep understanding of what it means for how their workplace is run, consider the types of microaggressions that may have been happening and overlooked and if there is a population that will be speaking out about those issues with a louder voice now that they know the law is on their side. The assumption shouldn’t be that just because you hadn’t heard about issues in the past that issues were nonexistent for this population.

Be informed on relative state and local legislation. Though this ruling only applies to employers with 15 or more employees, employers of all sizes need to be aware of the various layers of legislation that may impact them. Each state and sometimes local government may have additional requirements for employers. “There’s a lot of layers. Take the time and make the investment to ensure you, as an employer, are taking all reasonable steps to make sure you are in compliance,” advises Nadler.

Know that this may be an ever-evolving situation.  There are arguments and defenses that are in the lower courts that are calling out that due to religious beliefs, they can push to have the Religious Freedom Restoration Act supersede an employer’s obligation under the Title VII ruling. There are going to be follow up cases where employees may assert that their religious beliefs and by no means can we be certain how those cases may come out,” cautions Nadler.

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