The Bostock Decision: Prohibiting Discrimination Against LGBTQ+ Employees

Employers are prohibited from discriminating against people who are in protected classes. There are several protected classes the United States Government has set forth in Title VII of the Civil Rights Act of 1964. Title VII prohibits employers from discriminating because of, or on the basis of, a person’s race, color, religion, sex, or national origin. The statute applies to employers that are engaged in an industry affecting commerce, who has 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year.

In a surprising moment, the Supreme Court of the United States recently held that gay men, lesbians, and transgender people are protected under Title VII from workplace discrimination in the case Bostock vs. Clayton County. Chief Justice John Roberts and Associate Justice Neil Gorsuch voted in favor of protection for gay and transgender people, to the surprise of conservative pundits and court-watchers. Two sentences in the opinion summarize the entire decision: “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.”

Although the Bostock decision did not specifically address discrimination experienced by people who fall into other, nontraditional, gender categories, Bostock almost certainly protects these people from adverse actions and other workplace discrimination because of their sex. Most likely, then, employees that are “nonbinary”, who do not identify as specifically male or female, are protected. Same for “intersex” people, who have both male and female biological markers. And your employees that are gender-nonconforming, such as the effeminate man or the macho woman? They are probably protected, too.

The Supreme Court’s decision was premised on three different cases that share a common characteristic: The employer fired the employee on the basis of sex. In one, because the employee was gay. In the second, because the employee participated in a gay recreational softball league, and in the third, because a male employee transitioned to be female.

The clear message is that the decision to terminate an employee should never be based in whole or in part on any consideration of the employee’s sex. The test is this: If the employee wasn’t homosexual, or transgender, or otherwise nontraditional or nonconforming, would they be fired? If the answer is no, then the termination violates Title VII.

What does this mean to employers in the printing industry? Hopefully not much, if companies have already been treating employees the same, whomever they are. But hope is not enough, and it is time to reflect on things to do — and things to avoid — to make sure employees are not discriminated against because of their sex.

The first thing to know is that employees are not required to disclose that they are gay, lesbian, transgender, or in any sex/gender nonconforming or nontraditional protected class. Not knowing this information, however, does not give employers the right to ignore the Bostock decision. Companies should ensure that their policies and practices do not discriminate.

Second,  consider the compensation methodology. Employers should review compensation and make sure there is a documented, nondiscriminatory compensation system in place, based on experience, skills, and other neutral criteria.

Another policy to consider is the dress code. Well-intentioned company dress codes that talk about different standards for men and women should be rewritten to be gender neutral. Instead of saying, “women should not wear dangling earrings,” revise the policy to say, “employees should not wear dangling earrings.” The same neutral language should be used for grooming habits, because requiring that long hair be pulled into a bun does not need to be assigned to men or women.

Another thing to check is your employer-sponsored health plans. Do they allow for medical procedures, medications, and therapies that would be needed by gay, lesbian, and transgender individuals that might not be needed for other employees? Talk to your insurance provider and make sure coverage is even-handed in providing these services.

The use of bathrooms and locker rooms was specifically omitted from the Court’s decision, but inevitably these facilities will be examined in future court cases. Providing a gender-neutral single-toilet facility with a locking door and enough space to change clothing would be a positive effort, and likely appreciated by many employees, not just those covered by the Bostock ruling.

The guiding principle to avoid discriminatory employment practices is to examine the basis for the decisions, policies, and procedures being made in the workplace. For each decision, the employer should know the reason, or the “why.” If the why is not on the basis of sex, then it will protect the employer from liability under Bostock.