32 SEPTEMBER / OCTOBER 2020 HUMAN RESOURCES Bostock Landmark Decision Affecting LGBTQ rights Debra A. Mastrian Partner SmithAmundsen LLC dmastrian@salawus.com SmithAmundsen LLC is a Diamond Associate Member of the Indiana Bankers Association. This past summer, the U.S. Supreme Court handed down a landmark decision in Bostock v. Clayton County ruling that Title VII of the Civil Rights Act of 1964 protects gay and transgender employees from discrimination in the workplace.1 Title VII, which covers employers with 15 or more employees, prohibits employment discrimination based on sex and other protected characteristics. The Court held that “sex” includes not only gender, but also sexual orientation and gender identity. Sexual orientation refers to a person’s emotional and/ or physical attraction based on gender (e.g., heterosexual, homosexual, bisexual). Gender identity refers to a person’s personal sense of their own gender (male, female or “nonbinary,” a person who does not identify exclusively as male or female), regardless of sex assigned at birth. In writing for the majority, Justice Neil Gorsuch reasoned that: “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.” Many states (not Indiana) and municipalities have state and local laws prohibiting job discrimination based on sexual orientation or gender identity. Some federal courts, including the Seventh Circuit Court of Appeals (which has appellate jurisdiction over Indiana, Illinois and Wisconsin) have previously ruled that discrimination in the workplace based on sexual orientation is illegal under federal law. Even if a state or local law does not prohibit discrimination based on gender identity and sexual orientation, Title VII’s prohibition applies. Most banks and financial institutions already prohibit such discrimination. As federal contractors,2 they are subject to various executive orders, including Executive Order 13672 signed by former President Barack Obama in 2014, which amended earlier executive orders that prohibited discrimination by federal contractors in hiring and employment to include both sexual orientation and gender identity. Covered banks and financial institutions were required to update their equal employment opportunity policies to include sexual orientation and gender identity. For those banks and financial institutions, the Bostock decision serves as a reminder that employment actions must be nondiscriminatory, and employment policies should be gender-neutral. For employers that have not yet updated their discrimination and harassment policies, now is the time. Sexual orientation, gender identity and gender expression must be included in anti-discrimination and harassment protections. In addition to protecting LGBTQ employees from discrimination in hiring and termination decisions (including reductions in force or layoffs), employers should be cognizant of how discrimination affects individuals in the context of other employment actions and with respect to employment policies. Many employers have addressed the issue of restroom accessibility, allowing employees to use restrooms corresponding to their gender identity. Employers must also be aware of how employment policies, including dress and grooming codes, affect LGBTQ employees. The U.S. Equal Employment Opportunity Commission and many courts previously found that gender-specific dress codes did not violate Title VII’s prohibition on sex discrimination, so long as the dress codes were
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