What You Need to Know
Previously, only 33 states and the District of Columbia offered some form of protections for LGBTQ workers. That is no longer the case as the Supreme Court’s ruling covers all LGBTQ workers across the United States. The decision upholds rulings from lower courts stating sexual orientation and gender identity discrimination are forms of sex discrimination.
Supreme Court Justice Neil Gorsuch wrote in favor for the court – “An employer who fired an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”
The ruling could impact laws extending far beyond employment, such as the policies related to transgender persons serving in the military, the Fair Housing Act and Title IX of the Education Amendments Act. While these laws and similar regulations are likely to be revisited by government officials in the near future, what is clear is that the decision has immediate ramifications for workplaces throughout the United States.
Impact on Workplace Culture
The ruling is widely seen as a landmark case for LGBTQ rights and aims to fundamentally change the culture of the workplace. As a result, whistleblower allegations are likely to increase as more people are encouraged to speak out against wrongful terminations and overall mistreatment of LGBTQ workers. Companies should encourage a speak-up culture to ensure any potential misconduct is uncovered and staff feel comfortable voicing concerns. At the same time, employers should be prepared for a rise in whistleblower-related investigations and have either the internal or external resources at the ready to conduct objective inquiries. Robust controls should also be in place to protect those who speak out.
Another step that employers should consider is implementing additional and/or enhanced workplace harassment trainings. Many states have already instituted related training mandates in an effort to protect workers’ rights. Trainings are a proven way for organizations to educate employees about the laws and ensure compliance. In addition, proactive trainings focused on maintaining a culture of inclusivity are generally viewed positively by regulators if/when a whistleblower allegation or government inquiry arises.
Key Actions to Take Now
Companies must be ready with proven and objective investigative resources as whistleblowing reports increase. Seek assistance to help analyze email communications and other employee records for indications of misconduct; conduct discreet on-site reviews and interviews; report findings to regulators; assist on remediation efforts; and assess the effectiveness of whistleblower programs in the prevention of wrongdoing.
Additionally, now is the time to revisit existing respectful workplace training to ensure it incorporates protections for LGBTQ employees and implement customized training for your staff that is compliant with state requirements, as well as the latest federal guidance.