Discrimination Claim Policies
The Supreme Court’s Bostock v. Clayton County, Georgia, ruling holds that Title VII of the Human Rights Act of 1964 protects workers from discrimination based on sexual orientation and gender identity. As a result, it might be wise to review any policies that could put you at risk for discrimination claims.
While the court’s opinion mentions workplace issues such as sex-segregated bathrooms, locker rooms, and dress codes specifically, it purposefully does not offer employers any concrete guidance on how to avoid legal missteps in those areas. Instead, the decision states that those issues were not brought before the court, meaning that they were not considered in the ruling.
However, employers should proactively review and update their existing policies. The types of policies most likely to be a problem include:
Dress Code Workplace Policies
The primary issue in most dress codes will be gender-specific requirements and how an employer might enforce them for transgender employees. If your dress code does include gender-specific guidelines, consider making it clear that they apply to an employee’s gender identity. Or, better yet, consider taking this opportunity to reflect on whether gender-specific dress codes are still relevant in today’s workplace.
Do your anti-harassment and discrimination policies mention other protected characteristics but not sexual orientation and gender identity? While technically both of those characteristics are protected on the basis of sex, which is probably included in your policy, now might be the time to elaborate. A robust, well-enforced policy that defines exactly who is protected and how is your first line of defense against discrimination claims.
Though most companies are not required to adopt a statement of equal employment opportunity (EEO), many choose to do so anyway. Those that do, or those looking to, should ensure the statement clarifies that applicants and employees will have equal opportunities regardless of their sexual orientation, gender identity, or any other protected status.
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