Employer compliance with the recent U.S Supreme court ruling on LGBT employee discrimination

Published 25 June 2020 by Loren & Kean Law

The U.S. Supreme Court recently released a landmark ruling in Bostock v. Clayton County, Georgia. The ruling established that Title VII of the U.S. Civil Rights Act of 1964, which prohibits discrimination of employees based on gender, also applies to gay and transgender employees. This article explains the legal implications of the ruling and provides guidance on how employers can avoid a Title VII gender discrimination lawsuit.

What is the impact of the ruling?

The U.S. Supreme Court ruling applies nationwide. Title VII applies to employers with more than 15 employees. The ruling provides that “an employer who fires an individual merely for being gay or transgender defies the law.” Following the ruling, if an employer fires an employee because they are gay or transgender, they can be subject to a Title VII lawsuit. Although the ruling specifically mentions firing, it is expected to apply to Title VII lawsuits for all aspects of employment, including but not limited to, hiring and firing, promotions and demotions, benefits, recruiting, training, transfers, employee leave, and layoffs.

How have courts determined whether an employer has discriminated against an employee?

Courts have looked to whether the employer made an employment decision specifically because of the employee’s gender. Even if the decision was only partially motivated by the employee’s gender, and the employer had other proper factors, the court may find that the employer has violated Title VII. Under Title VII, even when an employer’s policies are not discriminatory, but the application of the policy negatively impacts employees based upon gender, an employee may bring a disparate impact lawsuit against the employer. For example, a fire department’s requirement that applicants be able to carry 100 lbs. was considered to have a disparate impact on women applicants and violated Title VII. 

What is the process for a Title VII violation?

A Title VII claim is initiated by an employee complaint to the EEOC. The EEOC may encourage the parties to mediate the claim. The EEOC then decides to either take the case and represent the employee or issue a “right-to-sue” notice. Before the EEOC can file a lawsuit, it must attempt to resolve the matter through conciliation. Conciliation is a voluntary process where the EEOC works with the employee and employer to suggest a mutually agreeable solution. A “right-to-sue” notice allows an employee to file suit against the employer but includes a strict requirement that the employee bring a lawsuit within 90 days of receiving the notice.

How can employers protect themselves?

Do not fire an employee based upon personal feelings. Make employment decisions based upon objective grounds, such as performance reviews or job attendance. Create a paper trail showing the employee’s job performance reviews and any disciplinary actions taken against the employee. When you fire an employee, make a note in the employees’ file and keep the file for at least 2 years.  The most common problem we evaluate is when a client tells us that they have no written adverse information or discipline on an employee’s file.

Also, written policies are one of the strongest defenses. Update your employee handbook to ensure that nothing can be construed as discrimination based upon gender, whether it be the handbook itself or the application of handbook policies.  Be clear that any employee that harasses another employee is subject to discipline or termination, but also make sure to enforce the policies consistently. If you do not have a written handbook outlining company policies, consider hiring an experienced attorney to draft one. 

When an employee comes forward with a complaint, take it seriously and start an investigation.  Consult with an experienced attorney immediately. Valuable tools are available to the attorney in the early stages of an EEOC complaint, including mediation and possibly conciliation.

Bruce E. Loren, Kyle W. Ohlenschlaeger and Brandon J. Camilleri of the Loren & Kean Law Firm are based in Palm Beach Gardens and Fort Lauderdale. Loren & Kean Law is a boutique law firm concentrating in construction law, employment law, and complex commercial litigation. Mr. Loren has been certified in construction law by the Florida Bar since 2004, exemplifying the Bar’s recognition of his expertise. Mr. Loren, Mr. Ohlenschlaeger and Mr. Camilleri can be reached at: bloren@lorenkeanlaw.com , kohlenschlaeger@lorenkeanlaw.com , and bcamilleri@lorenkeanlaw.com or 561-615-5701