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Discrimination on the basis of gender identity and/or sexual orientation in the workplace is prohibited by the Civil Rights Act based on caselaw from the United States Supreme Court.
Given recent events, private sector employers are wondering how to protect themselves. First, we need to look back before we can move forward.
The Background
Title VII of The Civil Rights Act of 1964 prohibits discrimination by employers on the basis of race, color, religion, sex or national origin. With the passage of the Civil Rights Act of 1964, the Equal Employment Opportunity Commission (EEOC) was established by executive order to investigate and litigate discrimination complaints.
In 2020, the Supreme Court heard the case of Bostock v. Clayton County, ruling that Title VII of the Civil Rights Act of 1964 did extend to sexual orientation and gender identity.
On the first day of President Trump’s second term, he rescinded the executive order previously issued by President Biden and issued Executive Order 14168 “Removing Gender Ideology and Restoring the EEOC’s Role of Protecting Women in the Workplace.” It instructs the federal government to recognize only sex and not gender identity.
What is next?
This has private employers asking the big question: Can my employees still file an EEOC charge for gender identity discrimination? Yes, they can.
The private sector is still bound to the Supreme Court’s ruling in Bostock v. Clayton County and the EEOC still recognizes sexual orientation and gender identity as protected classes.
The EEOC guidelines note that sex-based discrimination and harassment include disclosing an individual’s sexual orientation or gender identity without their permission, harassing conduct because an individual does not present in the manner stereotypically associated with that person’s sex, and denial of access to a bathroom or other sex-segregated facility consistent with an individual’s gender identity.
Back to the states
Employers must also consider laws passed by states, nearly half of which have LGBTQIA+ employment discrimination protections for sexual orientation and gender identity in private sectors. Ohio specifically prohibits employment-related discrimination based on gender identity but not for sexual orientation.
Protect yourself
With so many changes at the federal level, organizations should protect themselves. Private employers can safeguard their organization by purchasing an Employment Practices Liability (EPL) policy. This policy typically covers claims related to harassment, discrimination, and other employment-related disputes.
- Many EPL policies offer access to risk management resources from your insurance carrier, including developing compliant handbooks with non-discrimination policies.
- Be proactive in policy reviews: Regularly update workplace policies to adapt to changing legal requirements and industry standards.
- Provide ongoing training: Train leadership and employees on inclusive practices and respectful workplace behavior.
- Cultivate an inclusive workplace culture: Foster an environment where all employees feel valued, supported and empowered.
The experienced team at Oswald can guide you to risk management resources available to you as an EPL policy holder. We can also review your EPL policy and limits with the appropriate coverage tailored to your needs.
For more information, please visit our Property & Casualty page or contact us below.
