June 16, 2020 Landmark Ruling from the Supreme Court Enhances LGBTQ Employment Protections; Guidance from the EEOC on COVID-19 Issues

U.S. Supreme Court:  Title VII Protects LGBTQ Workers From Discrimination

On Monday, in a 6-3 decision, the U.S. Supreme Court in Bostock v. Clayton County held that an employer who discriminates against an employee because the employee is homosexual or transgender violates Title VII of the Civil Rights Act of 1964.  The decision resolved three consolidated cases.  In each case, an employer allegedly fired a long-time employee because of their sexual orientation or because they were transgender. The Eleventh Circuit dismissed the employee’s lawsuit as not stating a claim under Title VII, and the Second and Sixth Circuits allowed the employees’ claims to proceed.  The Supreme Court granted review to resolve the split between the circuits and to determine the scope of Title VII’s protection against discrimination “because of sex.”

Discussion

Justice Gorsuch, who was nominated to the Court by President Trump, wrote the Court’s opinion, in which Chief Justice Roberts joined, along with four other justices.  Justice Gorsuch is also a proponent of “textualism,” under which statutes based are interpreted on their words alone, not on the intentions of the law’s drafters. 

Title VII states that it is unlawful for an employer to fail or refuse to hire or to discharge any individual “because of such individual’s race, color, religion, sex, or national origin.”  Justice Gorsuch wrote that whether Congress intended in 1964 to protect gay or transgender employees from discrimination, a decision to fire an employee for being gay or transgender violates Title VII because “homosexuality and transgender status are inextricably bound up with sex.”  When an employer discriminates against an individual because they are homosexual or transgender, they are doing so “for traits or actions it would not have questioned in members of a different sex.”  

With Monday’s landmark decision, federal law comes closer to mirroring California law.  Similar to Title VII, California’s Fair Employment and Housing Act (“FEHA”) prohibits discrimination against employees on the basis of sex, which includes homosexual and transgender individuals.  However, the FEHA also specifically prohibits harassment and discrimination because of “gender identity” and “gender expression.”  Title VII only specifies “sex,” but this now includes sexual orientation and transgender status.    

While the Supreme Court did not address whether Title VII also protects gender identity and gender expression, it did hint at a possible answer with its statement that the application of Title VII is not limited to what was foreseen at the time of its enactment in 1964.    

What This Means

With this landmark decision, Title VII protection will expand in more than half the states.  It remains to be seen how Bostock will be applied to other federal laws that prohibit discrimination based on sex, such as Title IX, but a similar outcome seems likely given the Court’s reasoning.  As noted by Justice Alito in his dissent, the Court’s decision “is virtually certain to have far-reaching consequences,” as “[o]ver 100 federal statutes prohibit discrimination because of sex.”  The decision could also undermine many regulatory changes implemented by the Trump administration, which cut back protections for LGBTQ individuals in education, government contracting, housing, healthcare, and other areas.

The EEOC Issues New COVID-19 Guidance 

On June 11, 2020, the Equal Employment Opportunity Commission (“EEOC”) issued revised guidance for employers regarding pandemic-related harassment, accommodations and flexible work arrangements, and the potential for discrimination.

Pandemic-Related Harassment

The EEOC’s revised guidance addresses two pandemic-related harassment issues. 

First, the EEOC reminds employers that telework-related harassment should be treated no differently than harassment in the workplace.  Employers should not only be aware of the various digital platforms used in their particular workplace, but should also be prepared to conduct investigations of harassment claims arising from email, social media, video conferencing, or any other digital platforms.

Next, the EEOC suggests that employers be aware of harassment towards employees who are, or are perceived to be, of Asian national origin.  The EEOC recommends that employers ensure that employers understand how to recognize and resolve such harassment before they rise to the level of unlawful discrimination.  The EEOC also recommends:

  • sending a reminder to the entire workforce noting Title VII’s prohibition on harassment;
  • reminding employees that harassment will not be tolerated;
  • inviting those who experience or witness workplace harassment to report it to management; and
  • reminding employers that harassment can result in disciplinary action up to and including termination.

Accommodations and Flexible Work Arrangements

The EEOC’s revised guidance provides recommendations and guidance on the scope of an employer’s duty to accommodate, and how to address various employee requests for accommodations during the pandemic.

First, the EEOC notes that employers may proactively invite employees’ requests for accommodations and flexible work arrangements, even before announcing a return to work date.  Employers may initiate these discussions by sending notices that express their willingness to consider accommodations and provide instructions on who employees can contact to make a request.  Regardless of the method, the person who handles the inquiries should be someone knowledgeable on how to address the requests in accordance with federal anti-discrimination laws. 

Second, the EEOC clarified that an employer is not required to accommodate a non-disabled employee for disability-related needs of a family member or some other associated person.  The EEOC explained that although the Americans with Disabilities Act (“ADA”) does prohibit discrimination against an employee based on association with a disabled individual, this protection is limited to disparate treatment and harassment; not to reasonable accommodations.  That said, employers may offer accommodations to employees who have concerns about their family members being exposed to COVID-19.  In doing so, employers should take steps to ensure accommodations are not offered in a discriminatory manner.

Third, the EEOC states that an employee’s request for an alternative method of COVID-19 screening due to a medical condition is a request for reasonable accommodation under the ADA.  As such, the employer must proceed as they would for any other request for accommodation under the ADA or the Rehabilitation Act and address it through the interactive process.  The same principles apply if the request was made for religious reasons. 

Fourth, the EEOC reminds employers that pregnant employees may be entitled to reasonable accommodations for pregnancy-related medical conditions under the ADA.  Employers may be required to provide the same type of  job modifications or flexible work arrangements to pregnant employees as they provide to employees who are similar in their ability or inability to work.

Potential for Discrimination Claims

The EEOC’s revised guidance also addressed various considerations for employers to avoid violating federal discrimination laws.

The EEOC first noted that employers cannot involuntarily exclude workers from the workplace merely because the worker is over the age of 65.  Based on the CDC’s statement that people 65 years and older are at “high-risk for severe illness from COVID-19,” many employers may be tempted to prohibit older employees from coming into the workplace.  Even if this is done for benevolent reasons, the employer could violate the Age Discrimination in Employment Act (“ADEA”), which prohibits employment discrimination against individuals who are 40 and over.  Although the ADEA does not include a right to reasonable accommodation for older workers when age is the only consideration, the EEOC states that “employers are free to provide flexibility to workers age 65 and older; the ADEA does not prohibit this, even if it results in younger workers ages 40-64 being treated less favorably based on age in comparison.” 

Importantly, older workers may have medical conditions that bring them under the protection of ADA, in which case the request for accommodation would be based on their disability, as opposed to their age.  This revised guidance is consistent with the previous EEOC revised guidance which required “individualized assessment” about whether the specific employee’s disability poses a “direct threat” to his or her health that cannot be eliminated or reduced by reasonable accommodation.  For more information on the “direct threat” standard, see the May 11, 2020, PPSC E-Update.

Similarly, the new section on pregnant employees warns employers that involuntarily excluding pregnant employees from the workplace would violate Title VII of the Civil Rights Act of 1964.

The EEOC’s revised guidance also cautions employers about potential sex-based discrimination when providing flexible work arrangements for employees with school-age children.  Although employers may offer flexible work arrangements for employees with school-age children, employers must ensure they are not treating employees differently based on sex or other EEO-protected characteristics.  For example, employers cannot make gender-based assumptions on caregiver responsibilities to give more favorable treatment to female employees. 

What This Means

Most of the EEOC’s revisions do not change an employer’s existing obligations to comply with federal discrimination and harassment laws.  Further, the new set of EEOC guidelines are consistent with California discrimination and harassment law.  Employers should review these revised guidelines and be proactive in avoiding discrimination and harassment claims related to COVID-19.

AUTHORS
KRIS DARROUGH   Fred Plevin   POLINE POURMORADY