Creatives On Call is proud to support, work with, and hire a diverse population of creatives as well as clients. As a company, we are thrilled that there are more rights available for employees. If you have any questions about the following, we’d be happy to talk to you.
A quick note: Legal terminology and that used within court opinions, particularly in cases pertaining to LGBTQ issues, often consists of outdated and inaccurate language. Except where specific legal terminology is required, I rely on GLAAD’s Media Reference Guide available at www.glaad.org/reference
On June 15, 2020, the US Supreme Court ruled in Bostock v. Clayton County that employers may not discriminate against employees or potential employees due to their sexual orientation or gender identity. Although some states had laws on the books to protect LGBTQ members of the workforce from discrimination, the Bostock decision guarantees these protections throughout the country. The Court's job in Bostock was to answer one question: does protection against "discrimination on the basis of sex" extend to people who are gay or transgender?
In Title VII of the Civil Rights Act of 1964, Congress outlawed discrimination in the workplace on the basis of race, color, religion, sex, or national origin. Individuals who have experienced these types of discrimination in recruiting, hiring, promoting, transferring, training, disciplining, discharging, assigning work, measuring performance, or providing benefits may initiate a claim with the Equal Employment Opportunity Commission (EEOC). Generally, a successful claimant may ultimately be entitled to back pay, compensatory damages, and punitive damages. Failure to resolve the matter in the EEOC can lead to action in the courts.
Prior to the Bostock ruling, the law varied from state to state regarding whether an employer could discriminate against members of the LGBTQ community, and protections were only afforded where state law specifically allowed. Title VII's prohibition against discrimination on the basis of sex was mostly limited to claims of sexual harassment and pregnancy discrimination.
This is not the first time the Supreme Court has expanded the legal understanding of "discrimination on the basis of sex." In a 1971 case the Court held that a company violated Title VII by refusing to hire women with young children.1 In 1978 the Court ruled that a company could not force women to pay more into their pension fund than men, which the company required because women tend to live longer than men.2 Then in 1998, the Court ruled that men can also be victims of sexual harassment.3 The Court in Bostock states that in those prior cases, "the employer easily could have pointed to some other, non-protected trait and insisted it was the more important factor in the adverse employment outcome," such as arguing that it's policy was based on "life expectancy," or "motherhood," rather than "on the basis of sex."
1 Phillips v. Martin Marietta Corp., 400 U. S. 542
2 Los Angeles Dept. of Water and Power v. Manhart, 435 U. S. 702 3 Oncale v. Sundowner Offshore Services, Inc., 523 U. S. 75
The Court's ruling makes clear that where sex plays any role at all in the employer's decision, the discrimination is illegal under Title VII. It is not possible to discriminate against someone due their sexual identity or orientation without taking sex into account.
What the Supreme Court Ruling Means for Employees
• If you believe your employer has illegally discriminated against you, you must file a charge with the EEOC no later than 180 days of the latest incident.
• Contact the EEOC as soon as you decide you would like to file a charge. You will complete an interview with a staff member. The ultimate decision of whether file a formal charge is your decision.
• Information obtained from individuals who contact EEOC is confidential and will not be revealed to the employer until the individual files a charge of discrimination.
• Your employer may not fire, demote, harass, or otherwise "retaliate" against you for filing a charge.
• You must file a charge with the EEOC before you can file a lawsuit for unlawful discrimination.
What the Supreme Court Ruling Means for Employers
The EEOC is working to update its resources and create new training materials regarding LGBTQ protections in the workplace. Information can be found at https://www.eeoc.gov/laws/guidance/what-you-should-know-eeoc-and-enforcement- protections-lgbt-workers#training
Knowing Your Rights
The EEOC provides several examples of LGBTQ discrimination:
• Failing to hire an applicant because she is a transgender woman.
• Firing an employee because he is planning or has made a gender transition.
• Denying an employee equal access to a common restroom corresponding to the employee's gender identity.
• Harassing an employee because of a gender transition, such as by intentionally and persistently failing to use the name and gender pronoun that correspond to the gender identity with which the employee identifies, and which the employee has communicated to management and employees.
• Denying an employee a promotion because he is gay or straight.
• Discriminating in terms, conditions, or privileges of employment, such as providing a lower salary to an employee because of sexual orientation, or denying spousal health insurance
• Benefits to a female employee because her legal spouse is a woman, while providing spousal health insurance to a male employee whose legal spouse is a woman.
• Harassing an employee because of his or her sexual orientation, for example, by derogatory terms, sexually oriented comments, or disparaging remarks for associating with a person of the same or opposite sex.
• Discriminating against or harassing an employee because of his or her sexual orientation or gender identity, in combination with another unlawful reason, for example, on the basis of transgender status and race, or sexual orientation and disability.
Terry M Cannon, Esq. is a practicing lawyer for a local law firm. He graduated from University of Cincinnati Law and is a member of the Kentucky Bar Association.
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