In addition to updating company policies and training to comply with the ruling, companies will also need to consider whether changes will need to be made to employee benefits. (Photo: Shutterstock)
This week, the Supreme Court handed down a big win for LGBTQ individuals, ruling that the protections imposed by the 1964 Civil Rights Act extended to gender identity and sexual orientation.
For many businesses, the ruling reinforces existing company policies, while others will have to do some major rewrites. No matter how inclusive an employer thinks their company culture is, however, the decision should spark a review of all policies and training to ensure it reinforces the new protections.
Following the ruling, employment law and legal experts shared their thoughts on how the decision will affect employers. Here are a few:
|Making things official
"This decision is significant in that it will now create a consistent rule of law nation-wide with regard to the prohibition of discrimination against LGBTQ employees in the workplace That said, it is important to note that most states, and many localities, already had such anti-discrimination laws on the books before this decision. Similarly, the Equal Employment Opportunity Commission, the agency handling federal discrimination claims, has long taken the position that such claims are actionable under Title VII, and most large companies prohibit such discrimination in their policies. As a practical matter, these protections already existed in most workplaces across America.
"The breadth of the decision is also important in that it takes a very expansive view of discrimination based on sex, that casts asides terminology and labels. Employers will need to ensure their training makes clear that stereotyping, harassment, or discrimination based on any aspect of sex or gender (not just orientation or sexual preference) is unlawful.
"One meaningful impact of this decision will be the scope of the ruling as it pertains to quasi-religious organizations like schools, and to employers who seek to argue there should be some room for employment decisions that are perhaps discriminatory, but made in good faith due to religious beliefs. That debate was part of the disagreement between the justices and will likely divide the lower courts for years to come."
–David Barron, Labor & Employment attorney at Cozen O'Connor
|Stay out of court
"In the last several years, lower federal courts have differed on whether the prohibition of sex discrimination in Title VII prohibited discrimination based on sexual orientation and transgender status. To make the issue even more complicated, the Equal Employment Opportunity Commission, the federal agency that enforces Title VII, has interpreted and enforced Title VII as forbidding any employment discrimination based on gender identity or sexual orientation.
"Today's opinion will have a long term impact on employers who are subject to Title VII – those having 15 or more employees. Regardless of contrary state laws, such employers may not discriminate against individuals in employment decisions because they are gay or transgender. Those that do violate Title VII and are subject to legal actions against them that could be very costly. There will no doubt be cases for the next several years addressing religious liberty issues that will be raised by some employers in defense of such Title VII claims. Employers with less than 15 employees will continue to be governed by applicable state and local anti-discrimination laws."
–Elaine Turner, shareholder/partner at the national law firm Hall Estill
|Time for a policy update
"This decision has been a long time coming. In the wake of President Trump's roll-back of health insurance protections for transgender Americans, the LGBTQ community needed a win, and this is it.
"For employers, this means federally mandated equal treatment for all LGBTQ employees. Although many states already had laws prohibiting discrimination on the basis of sexual orientation, now all states must provide equal protection to LGBTQ workers. If your employment policies do not currently provide for nondiscrimination based on sexual orientation and gender identity, you should update them to explicitly list those categories.
"While LGBTQ employees will now receive protection based on 'sex' regardless of employer policies, expanding your policy to include protections for sexual orientation and gender identity is not only the right thing to do, but it will provide evidence that your company intends to comply with Title VII's protection of 'sex' in its totality."
–JoLynn Markison, partner at international law firm Dorsey & Whitney
|Review your benefits language
In addition to updating company policies and training to comply with the ruling, companies will also need to consider whether changes will need to be made to employee benefits. Writing in a blog post, benefits firm Mercer notes the following:
Benefit offerings: "Although the Court recognized same-sex marriage in 2015, it didn't directly address private-sector employment practices. Employers with self-funded group health plans could still offer coverage to opposite-sex spouses and not also same-sex spouses. The Court's ruling recognizing Title VII's ban on sex discrimination in employment includes a ban on discrimination based on sexual orientation, makes it much more difficult for self-insured and fully insured ERISA plans to exclude same-sex couples from coverage."
Medical plan design: "Employers may want to review the medical plan coverage of gender dysphoria, including gender affirmation surgeries. Group health plan blanket exclusions of transgender-related services, including treatment for gender dysphoria and gender affirmation surgeries, should be reviewed for compliance risk."
Disability plan: "Check to see if your disability plans cover disability periods due to gender affirmation surgeries, whether or not the surgeries are covered by the group health plan."
Emotional well-being and behavioral health: "Plan sponsors may want to confirm that their EAPs or other benefit vendors (e.g., digital behavioral health) have specific services to support employees, or their allies."
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Emily Payne
Emily Payne is director, content analytics for ALM's Business & Finance Markets and former managing editor for BenefitsPRO. A Wisconsin native, she has spent the past decade writing and editing for various athletic and fitness publications. She holds an English degree and Business certificate from the University of Wisconsin.
