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Employers need to pay attention to sexual orientation and gender identity protection policies

By Scott Atwood on April 12, 2021
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photo of HR Policies and ProceduresAs the nation begins the slow recovery from the COVID pandemic, businesses will start to return to some level of “normalcy.” But that normalcy will be in a vastly different governmental environment. During the Trump years, businesses benefited from the administration’s pro-business attitude. The Biden administration has made it clear it intends to adopt a pro-employee, pro-union stance. In its first 100 days, the administration has begun to set the pieces for its long-term goals.

What impact will the Equality Act, if passed, have on employers?

One of the more visible areas of change is coming in the civil rights arena. President Biden fired the Equal Employment Opportunity Commission’s general counsel in March when she refused to resign. The EEOC general counsel, who sets the tone for the number and types of cases the Commission pursues, had been relatively modest in her enforcement efforts during the Trump administration. That should be changing. One area that will likely be a red flag issue with the Biden-era EEOC is LGBTQ+ rights.

Despite the Supreme Court’s 2020 decision that gay, lesbian, and transgender individuals are covered under Title VII of the 1964 Civil Rights Act’s employment protections, the EEOC has not taken a strong stance to enforce that decision. With Congress on the verge of passing the Equality Act, a Biden-supported Act that will amend Title VII and several other laws to specifically provide protections for “sexual orientation and gender identity,” the EEOC will likely take a strong mandate from the new general counsel to enforce protections for these individuals.

Handbook policies and training

respect word cloudBusinesses who do not update their policies to include sexual orientation and gender identity protections do so at their own risk. This area will be a focus of the EEOC and plaintiff’s attorneys as COVID issues subside. Training of employees as to your policies and the fostering of respectful work environments will be critical.  Workplaces that do not take an active approach to training will be much more susceptible to liability. Despite the fact that societal attitudes of acceptable behavior toward the LGBTQ+ community have changed significantly in a short period of time, there are a substantial number of individuals who still believe that they can discriminate against or harass LGBTQ+ individuals.

Congress’s formal amendment of Title VII to include sexual orientation and gender identity protections will drive home that this attitude is no longer acceptable and, indeed, is illegal. Employers need to remember, it is not just their managers who can create liability for the company. Line employees who foster anti-LGBTQ+ attitudes can also create company liability when those opinions create a hostile work environment for those workers, especially when management knows about it and they are allowed to continue the behavior.

Attorney Ben Yormak, whose firm Yormak Employment & Disability Law Group exclusively represents employees in employment disputes, emphasizes that “from the worker’s perspective, plaintiffs’ firms like mine will be paying particular attention to employers who fail to update their policies and training to include LGBTQ protections. Not including those protections may be viewed as implicitly discriminatory, it opens the door to a variety of hostile work environment claims.”

Take-Away

Employers should train managers and employees that LGBTQ+ rights are the law of the land now, and that discriminatory attitudes and actions are not acceptable. Especially in the case of non-management employees, training combined with policies that reinforce non-discrimination could provide a defense to lawsuits alleging harassment. And it might keep the EEOC’s new general counsel from deciding to make your company an example of the new administration’s civil rights enforcement agenda.

Employers needing guidance or training in this area may contact me at scott.atwood@henlaw.com or by phone at 239-344-1287.

Photo of Scott Atwood Scott Atwood

From complex labor and employment counseling and litigation to general business matters, Scott has been representing the interests of entrepreneurs, public entities, and businesses of all sizes throughout the United States, including Florida and Georgia, for nearly 25 years.

More specifically, Scott has…

From complex labor and employment counseling and litigation to general business matters, Scott has been representing the interests of entrepreneurs, public entities, and businesses of all sizes throughout the United States, including Florida and Georgia, for nearly 25 years.

More specifically, Scott has extensive experience in all aspects of employment law, including Title VII, ADA, ADEA, and Section 1983 discrimination, harassment, and retaliation matters, FMLA leaves issues, and FLSA and state law wage situations. He also assists his clients in whistleblower claims and non-compete, non-solicitation, trade secret, and contract disputes. With regard to general corporate matters, he prepares employment agreements, operating and shareholder agreements, restrictive covenant (non-compete, non-solicitation, confidentiality) agreements, and business contracts.

Scott also brings his expertise as a Florida Supreme Court Certified Circuit Civil Mediator to facilitate a resolution as an alternative to lengthy and expensive litigation. As a member of the Executive Council of the Florida Bar’s Labor and Employment Section, Scott is extremely active in helping formulate and implement legal policy on both the state and local level. He is admitted to practice in all state and federal courts in Florida and Georgia, including U.S. District Courts for the Southern and Middle Districts of Florida.

Scott has been recognized as a Florida Super Lawyer in labor and employment law. Previously, he was recognized by Atlanta Super Lawyers as a Rising Star in labor and employment law. While attending law school, Scott was elected Editor-in-Chief of the Florida Journal of International Law and was awarded the President’s Award for outstanding service to the University. He now serves on the College of Law’s Alumni Council.

Scott has two children, Caroline and Laura. They both attended Fort Myers High School’s IB program, and Caroline is now attending Scott’s alma mater, Dartmouth. Scott is married to Kristalyn Loson Atwood, who is also an attorney. When not working, Scott enjoys spending time with his family, traveling, and watching New England sports.

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  • Posted in:
    Featured Posts, Intellectual Property
  • Blog:
    Southwest Florida Business and IP Blog
  • Organization:
    Henderson, Franklin, Starnes & Holt, P.A.
  • Article: View Original Source

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