Why Bostock Is a Call for Employers to Do More in Terms of Inclusivity

Issues surrounding the rights of people who identify as lesbian, gay, bisexual, transgender, or queer (LGBTQ) are often painted as divisive in the media. On one hand are LGBTQ individuals and their advice, who have endured a difficult struggle to be recognized. On the other are those who remain vehemently opposed to any form of acknowledgment of their legal rights.

Yet many people may lie somewhere in between. They aren’t necessarily disposed of one way or another because they aren’t sufficiently informed. This lack of awareness can actually prove detrimental to any organization as inclusivity gains in prominence moving forward.

Years of struggle

The landmark case of Bostock v. Clayton County was settled by the Supreme Court in June 2020. The court ruled that Title VII of the Civil Rights Act of 1964 included sexual orientation and gender identity under its protections against workplace discrimination.

That this ruling took place over half a century since the original bill was passed underscores that persons identifying as LGBTQ have faced lengthy battles for their rights. There have been numerous setbacks as well as major victories over the years.

Baker v. Nelson in 1972 first brought the issue of marriage equality to the Supreme Court’s consideration. But that case was dismissed and did little to change reality for a minority set to suffer even more discrimination in the 80s with the AIDS epidemic.

The federal law did not recognize marriage for LGBTQ couples until the 2015 ruling in Obergefell v. Hodges. Even so, many legal areas are still in need of further research and clarification.

Much of divorce law, for instance, was developed with straight couples in consideration. What are the legal ties of a non-biological parent to any children the couple may have? It adds another layer of complexity to a difficult process, and you’d want to navigate those waters with a team like Lewis & Matthews, P.C., that’s sensitive to LGBTQ issues.

A historic decision

The Bostock ruling actually consolidated three separate cases. In all three, employees alleged that their employer fired them after becoming aware of their sexual orientation, and in one case, intent to transition.

The Court ruled that discriminating against an employee based on sexual orientation or gender identity was impossible without considering their sex. This conflicted with the statutory text of Article VII.

Consider two absolutely identical employees except that one is male and the other female, and both are attracted to women. An employer can’t fire the female for being attracted to the same sex without having used their sex as a basis for this termination. Similar reasoning applies to gender identity in place of sexual orientation.

Staying ahead of the curve

The ruling’s immediate implications for employers were clear. In the past, state and local laws determined what protections were given to LGBTQ employees. Some states afforded those inclusive protections, while others didn’t. Now, federal laws prohibit discrimination against LGBTQ employees.

For some employers operating in generally inclusive states, little will have changed. For others, the Bostock ruling created a significant and immediate need to re-evaluate organization-wide policies and procedures for compliance.

LGBTQ people are steadily becoming more visible in the media and popular culture. However, the fact that such legislation took years to pass in their favor illustrates that the law is often a few steps behind popular sentiment.

Given the history of the LGBTQ rights movement, it’s apparent that this tendency is only going to continue. As employers and individuals, we must do more than just follow the law’s basic requirements.

LGBTQ employees have long demanded more inclusive workplaces. It won’t be enough to say that your company culture is ‘decent’ or has no problems. Collectively, people need to be better informed on these issues to be truly respectful and welcoming.

Employers may not be required yet to provide gender-neutral, single-occupancy restrooms. They may not have reviewed their sex-specific dress codes or issued guidance on the use of non-binary pronouns and honorifics. Those things need to change sooner than later.

Opportunities for development and paths to promotion must be made open to all. If the law doesn’t seem clear on this point yet, it doubtless will be in years to come. And organizations such as the EEOC are often a step ahead in acting on such issues.

Stay ahead of the curve and create a truly inclusive workplace. It may be the best way to attract and retain talent, regardless of their sex, sexual orientation, or gender identity.

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