Supreme Court Ruling on LGBTQ Employment Discrimination
A federal law, Title VII of the Civil Rights Act of 1964, prohibits employers from discriminating against any individual with respect to compensation, terms, conditions, or privileges of employment “because of” or “on the basis of” such individual’s race, color, religion, sex, or national origin.
The prohibition against discrimination based on sex was originally interpreted to protect women from being treated worse than men. Later, the law was held to also prohibit discrimination against men, sexual harassment, and sex stereotyping (how a person should look, dress, and act based on their gender).
The Supreme Court has now held that sexual orientation and gender identity are “inextricably bound up with sex,” so discrimination based on those characteristics violates Title VII.
It is, said the Court, “impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.” The Court went on to give some examples:
Consider, for example, an employer with two employees, both of whom are attracted to men. The two individuals are, to the employer’s mind, materially identical in all respects, except that one is a man and the other a woman. If the employer fires the male employee for no reason other than the fact he is attracted to men, the employer discriminates against him for traits or actions it tolerates in his female colleague. Put differently, the employer intentionally singles out an employee to fire based in part on the employee’s sex, and the affected employee’s sex is a but-for cause of his discharge. Or take an employer who fires a transgender person who was identified as a male at birth but who now identifies as a female. If the employer retains an otherwise identical employee who was identified as female at birth, the employer intentionally penalizes a person identified as male at birth for traits or actions that it tolerates in an employee identified as female at birth. Again, the individual employee’s sex plays an unmistakable and impermissible role in the discharge decision.
While some states (including Oregon and Washington), counties, and cities already had laws prohibiting LGBTQ employment discrimination, it’s now illegal throughout the United States for employers to use sexual orientation or gender identity as a factor in making employment decisions, whether it is the only factor or in combination with other reasons.
Testing Employees for COVID-19 Antibodies
Last week, the Equal Opportunity Commission (EEOC) issued new guidance stating that in light of current CDC guidelines that antibody test results “should not be used to make decisions about returning persons to the workplace,” employers can’t legally require antibody testing before permitting employees to re-enter the workplace. Such testing will, according to the EEOC, violate the Americans with Disabilities Act (ADA).
The EEOC has authorized employers to take the following precautions during the pandemic:
* Ask employees who call in sick if they’re experiencing symptoms of COVID-19, such as fever, chills, cough, shortness of breath, or sore throat;
* Screen employees entering the worksite by asking them if they’re experiencing symptoms of COVID-19 and by taking their temperature;
* Require employees to go or stay home if they have symptoms of COVID-19;
* Require a doctor’s note certifying fitness for duty from returning employees;
* Administer a test to detect the presence of SARS-CoV-2, the virus that causes COVID-19, before permitting employees to enter the workplace.
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Whether you’re an employer or an employee, please feel free to contact us if you have any questions about or need assistance with employment-related legal issues.
Photo by Elyssa Fhndrich on Unsplash
