As 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
Businesses 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.”
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 firstname.lastname@example.org or by phone at 239-344-1287.