Employers: It is Time to Update Your Employee Handbook
By Matthew Kaminski
and April Walkup
The United States Supreme Court ended its Term in June 2020, with a landmark ruling that applies to all employers across the country with 15 or more employees – and it applies immediately. In Bostock v. Clayton County,1
the Court concluded that an employer violates Title VII’s “because of sex”2
provision if the employer takes an adverse job action against an employee for being homosexual or transgender.
The Court did not mince words:
"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."
While the Court considered fact patterns relating to the firing of an employee, the ruling applies to all adverse employment actions, including hiring, failure to promote, harassment, or reduction in compensation, terms or conditions of employment. It is also important for employers to be mindful of Title VII’s causation standard: if an employee’s sex was one of several but-for causes of the adverse employment act, Title VII has been violated.
In the wake of the Court’s decision, employers should take the following two steps to comply with the decision and to mitigate potential exposure to employment discrimination lawsuits.
, employers should update their employee handbook and equal employment opportunity policies to reflect this change in the law. Approximately 25 states already have state laws prohibiting homosexual or transgender discrimination, but if you are an employer in a state without this State level mandate, it is important to update policies to identify LGBTQ as a basis for employment protection. As of June 15, 2020, the date of the Court’s decision, this type of discrimination is illegal in all 50 states.
, employers should provide an education and training session to its employees of all levels to explain the effect of the Supreme Court’s decision in the workplace. In particular, an employer should provide a separate training session for those employees who have responsibility and decisionmaking authority to make employment-related decisions, such as hiring, firing, promoting, and other job-related decisions that affect an employee’s terms and conditions of employment.
It is important for employers to be aware of the expanded protections afforded by the Supreme Court’s ruling to employees in the LGBTQ community and implement policies and practices to ensure protections in the workplace.
1 149 S. Ct. 1731 (2020)
2 Title VII of the Civil Rights Act of 1964. See 42 U.S.C. § 2000e-2.