It’s Not All About COVID … Don’t Forget About “Regular” HR Laws

COVID-19 has demanded every employer’s immediate and on-going attention. Because of the pandemic, employers may not have paid particular attention or evaluated existing policies to ensure they comply with a recent decision by the United States Supreme Court. Specifically, on June 15, 2020, the United States Supreme Court released Bostock v. Clayton County, Georgia confirming the expansion of the traditional definition of a person’s sex under Title VII of Civil Rights Act of 1964 § 703(a)(1), 42 U.S.C.A. § 2000e-2(a)(1), to include sexual orientation and gender identity.

In this landmark decision, the United States Supreme Court decided a trio of cases involving several employment policies and views of sex – including a company’s dress code, an employee’s participation in a recreational league for homosexuals and an employee’s discussion of their sexual orientation.

Gerald Bostock worked for Clayton County, Georgia, as a child welfare advocate. After a decade with the county, Mr. Bostock began participating in a gay recreational softball league. Not long after that, influential members of the community allegedly made disparaging comments about Mr. Bostock’s sexual orientation and participation in the league. Soon, he was fired for conduct “unbecoming” a county employee.

Donald Zarda worked as a skydiving instructor at Altitude Express in New York. After several seasons with the company, Mr. Zarda mentioned that he was gay and, days later, was fired.

Aimee Stephens worked at R.G. & G.R. Harris Funeral Homes in Garden City, Michigan. When she got the job, Ms. Stephens presented as a male. But two years into her service with the company, she began treatment for despair and loneliness. Ultimately, clinicians diagnosed her with gender dysphoria and recommended she begin living as a woman. In her sixth year with the company, Ms. Stephens wrote a letter to her employer explaining that she planned to “live and work full-time as a woman” after she returned from an upcoming vacation. The funeral home fired her before she left, telling her “this is not going to work out.” And, then the funeral home argued the termination was justified because Ms. Stephens’ violation of the dress code policy that required men to wear suits.

The Court held the decision to terminate all three employees was based, at least as one factor, on sex; and, therefore, violates the law. The Court held that firing an individual for being homosexual or for being a transgender person or for traits or actions that would not have been questioned in members of a different sex, sex plays a necessary and undisguisable role in the decision, and is forbidden by Title VII.

While employers must take note of this case when making employment-related decisions, employers should also not maintain employment policies that clutch to a narrow view of sex, sexual orientation and gender. Failing to address outdated dress code or grooming policies or anti-discrimination and anti-harassment policies, for example, could result in legal troubles. Employment policies should be based upon the employee’s identified gender, not the gender on their birth certificate.

Employers should be wary about policies that result in disparate treatment to a certain gender by claiming gender is a “bona fide occupational qualification” of the job. While Title VII allows employers to prefer workers of a certain gender if their gender identity is a “bona fide occupational qualification;” this is seldom successfully recognized in court. The full impact of the Bostock decision has not played out, but it is likely that this decision will make justifying such BFOQ policies more challenging.

Implementing sex-neutral, gender-neutral and sexual orientation-neutral policies will help employers maintain positive and inclusive work environments and ward off legal consequences for failing to do so. Contact your Graydon attorney or any member of Graydon’s Labor & Employment Group to review your employment policies and ensure compliance with the most recent legal developments in employment law.