LGBTQ – Workforce

June 16, 2020June 29, 2023

Everything you need to know about the LGBTQ discrimination decision in 5 quotes

lgbtq, legal, discrimination, diversity and inclusion

June is Pride Month. If you thought the month’s biggest LGBTQ news was Nickelodeon tweeting that SpongeBob was part of the LGBTQ+ community, you have another thing coming.

On June 15, in Bostock v. Clayton County, the United States Supreme Court clearly, decisively and unequivocally held:

An employer who fires an individual merely for being gay or transgender violates Title VII.

The Bostock majority opinion is 33 pages long. I’ll break it down for you in five key quotes.

1. “Few facts are needed to appreciate the legal question we face. Each of the three cases before us started the same way: An employer fired a longtime employee shortly after the employee revealed that he or she is homosexual or transgender—and allegedly for no reason other than the employee’s homosexuality or transgender status.”

2. “Today, we must decide whether an employer can fire someone simply for being homosexual or transgender. The answer is clear. An employer who fires 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.”

3. “It is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”

4. “There is simply no escaping the role intent plays here: Just as sex is necessarily a but-for cause when an employer discriminates against homosexual or transgender employees, an employer who discriminates on these grounds inescapably intends to rely on sex in its decisionmaking.”

5. “We agree that homosexuality and transgender status are distinct concepts from sex. But, as we’ve seen, discrimination based on homosexuality or transgender status necessarily entails discrimination based on sex; the first cannot happen without the second. Nor is there any such thing as a ‘canon of donut holes,’ in which Congress’s failure to speak directly to a specific case that falls within a more general statutory rule creates a tacit exception.… ‘Sexual harassment’ is conceptually distinct from sex discrimination, but it can fall within Title VII’s sweep. Same with ‘motherhood discrimination.’ Would the employers have us reverse those cases on the theory that Congress could have spoken to those problems more specifically? Of course not. As enacted, Title VII prohibits all forms of discrimination because of sex, however they may manifest themselves or whatever other labels might attach to them.”

(Bonus wishy-washy quote, from Justice Kavanaugh’s dissent: “Notwithstanding my concern about the Court’s transgression of the Constitution’s separation of powers, it is appropriate to acknowledge the important victory achieved today by gay and lesbian Americans. Millions of gay and lesbian Americans have worked hard for many decades to achieve equal treatment in fact and in law. They have exhibited extraordinary vision, tenacity, and grit—battling often steep odds in the legislative and judicial arenas, not to mention in their daily lives. They have advanced powerful policy arguments and can take pride in today’s result. Under the Constitution’s separation of powers, however, I believe that it was Congress’s role, not this Court’s, to amend Title VII.”)

There has not been a more significant employment law decision in over 22 years. It might be that long or longer before we see another of this import. Bostock is worthy of celebration because it finally puts to rest any open issue that employers can insidiously and intentionally discriminate against their LGBTQ employees.

June 15 is a day worth celebrating because it will forever be the day that our LBGTQ brothers and sisters finally gained their civil rights at work. It was long overdue.

Employers, take heed. If you are still among the group of businesses that discriminate against LGBTQ employees, you are violating the law. This is no longer an open question. Case closed.

September 24, 2019June 29, 2023

Beware the ‘Religious Exemption’ Plan

Warning: This month’s column is not for everyone. If, however, you are offended by what I am about to say, then this is specifically for you.

In August, the Department of Labor’s Office of Federal Contract Compliance Programs, the federal agency that regulates and governs federal contractors and subcontractors, proposed regulations to clarify the scope and application of the religious exemption contained in section 204(c) of Executive Order 11246.

By way of background, Executive Order 11246, signed by President Lyndon B. Johnson in September 1965, “prohibits federal contractors and federally assisted construction contractors and subcontractors, who do over $10,000 in Government business in one year from discriminating in employment decisions on the basis of race, color, religion, sex, or national origin.” It’s been amended over the years, including its 2014 addition of LGBTQ protections to the list of prohibited discrimination.

Section 204(c) specifically exempts from coverage any “government contractor or subcontractor that is a religious corporation, association, educational institution, or society.”

The Trump administration seeks to expand section 204(c) to permit religious organizations with federal contracts to “make employment decisions consistent with their sincerely held religious tenets and beliefs without fear of sanction by the federal government.”

It makes clear that religious organizations can discriminate because of religion, and that religious organizations can require employees’ behavior to meet the organization’s religious rules.

What has people, including me, up in arms about this rule is its proposed change to what qualifies as a “religious organization.” The EEOC has long taken the position that for-profit companies cannot qualify as “religious organizations.” This proposal deviates from that long-standing rule for purposes of the OFCCP. Indeed, according to two senior Labor Department officials, the exemption would apply to “closely held companies acting in accordance with an owner’s religious beliefs.”

In other words, if someone organizes a closely held business for a religious “purpose” and holds itself out to the public as such, it would be exempt from the OFCCP’s anti-discrimination provisions if it operates its business consistent with its religious purpose.

What would this change mean practically? As the American Civil Liberties Union tweeted, “The Department of Labor just proposed a rule that aims to let government contractors fire workers who are LGBTQ, or who are pregnant and unmarried, based on the employers’ religious views.”

This is not “religious freedom.” It’s government-sanctioned discrimination. And it’s just plain wrong.

Private businesses can’t hold religious beliefs. Extending to them these protections based on their owners’ religious beliefs is dangerous. And scary. And abhorrent. We should all be troubled by a rule that permits an employer to opt out of an employment law because of a religious belief.

Religious freedom as an opt-out from the law is a dangerous construct. Our Constitution guarantees freedom of religion. We irreparably damage this important principle when we permit a private business, under the guise of religious freedom, to opt-out, without penalty, from an employment law with which it disagrees or finds offensive.

If you stand with me, and against government-sanctioned discrimination of any kind and in any form, write or call your senator and congressperson and tell them that this proposed rule cannot stand. That as a nation we are better than this. That all private businesses should be held to the same non-discriminatory obligations, regardless of the religious beliefs of their owners.

And, don’t forget about the comment period required by the rule-making process for any proposed regulations. The public gets to chime in, and everyone who opposes this rule should do so.

To conclude, I’ll make this as clear as possible.

Racism is wrong.

Sexism is wrong.

Homophobia is wrong.

If you disagree, you’re a bigot, period.

And, if you hide behind your religion to protect your views, then you’re a hypocritical bigot. There is nothing religious about bigotry, no matter what some might want you to believe.

August 28, 2019August 28, 2019

What Sex Discrimination Will Look Like if the DOJ Legalizes Sex Stereotyping

Last week the Department of Justice (on behalf of its client, the EEOC), filed a brief asking the Supreme Court to conclude that “sex stereotyping by itself is not a Title VII violation.”

What might this look like if the DOJ gets its wish?

Consider the following story (as told on Reddit).

I’m a 21 year old female. I feel like I should say these thing about myself because these are usually what people ask or say when they find out I rarely shave my legs. I’m straight, I’m very feminine, and I just don’t like to waste my time or money on shaving my legs. Also I’m not a hairy person at all! …

[T]oday I had to go into the office to grab some materials and my boss was there in his office so I stopped to say hi before I left out. …

My boss then proceeded to tell me that a few people complained I didn’t shave my legs and they said it went against company policy that I wasn’t being hygienic. I was even more shocked.

I cannot fathom a Title VII under which an employer can enforce a workplace rule prohibiting hairy legs against women but not men. Yet, that’s the world in which we might live if the Supreme Court legalizes “sex stereotyping.”

The DOJ argued in its brief that “sex stereotyping is actionable only to the extent it provides evidence of favoritism of one sex over the other,” and that it “does not excuse the plaintiff from the fundamental requirement of proving that the defendant treated members of one sex less favorably than similarly situated members of the opposite sex.” Otherwise, says the DOJ, “countless sex-specific policies would be per se unlawful as based on sex stereotypes, “ such as a “dress code that required men to wear neckties.”

But isn’t that the very point of prohibiting sex-based stereotypes at work. The stereotype itself is the “evidence of favoritism of one sex over the other.” It is the proof that the employer “treated members of one sex less favorably than similarly situated members of the opposite sex.”

Also read: #MeToo Hasn’t Killed the Office Romance, Just the Inappropriate Ones

An employer that prohibits women, but not men, from wearing neckties is acting on a sex-based stereotype that a necktie is men’s attire, and not women’s attire. Similarly, an employer who requires women to shave their legs, while letting men grow it au naturel, acts on a sex-based grooming stereotype for no reason other than gender. The application and enforcement of a sex-based stereotype to the detriment of one sex over another is the “evidence of favoritism of one sex over the other.” No other proof should be necessary.

I am hopeful that the Supreme Court does right by LGBTQ employees and holds that Title VII’s prohibition against sex discrimination implicitly covers LGBTQ discrimination. If, however, these cases go the other way, I pray that the Court does not take the DOJ’s bait and rewind women’s rights by five or six decades.

September 19, 2016June 29, 2023

What Are You Scared Of?

I’m not one for contemplating the big questions. You know: Why are we here? Does God exist? What’s the meaning of life?

I disdained philosophy in college. I had a headache the entire class because my eyes were constantly rolling, and no question ever seemed to have an answer.

I’m big on answers: We’re here because we are. Now live it up until you’re not. God exists if you want him to. If you don’t, he won’t. And the meaning of life? That’s up to you. We have these wonderful things called free will and choice with which to craft if not the life of our dreams, at least lives we can be proud of.

But I often ask myself one big question: Why are people so resistant to diversity?

Off the top of my head I can come up with a half dozen really great answers: history, social conditioning, life experiences, diversity fatigue, the need for power — that’s a personal favorite — and the winner of this motley group of diversity blockers, fear.

Fear.

It makes sense. The sexist remarks, the refusal to consider minorities for leadership positions, the unreal, almost determinedly blind lack of response to incidents of racism, discrimination and inequality in the workplace — and everywhere else — the insistence that very real experiences for some are not real at all, or because of who these realities occur to they are not worth acting upon or even considering, it all screams — to me — I’m scared of you. I think you could take my job and surpass me. Therefore, I’m going to shut you down by fair means or foul.

Of course, everyone who throws up a workplace road block for a woman, a disabled person, someone of color or someone who is LGBTQ, isn’t motivated by fear. Just like every white man isn’t racist, and every black woman isn’t angry, and every gay man or transgender woman isn’t secretly trying to convert the world to their way of life — that’s not actually a thing, by the way. But I’d venture to say — with absolutely no real way to prove this — that most of the artificial barriers minorities face in the workplace are generated and/or motivated by fear.

And in a business context, that leaders allow fear to dictate policy and procedure, that baffles me.

You don’t have to be a genius to look at the numbers, or the dollars. Diversity makes money — period. It helps businesses reach customers, innovate new products and services to sell, diversity can help companies reach new or untapped audiences with huge pots of discretionary/disposable income. It helps plump up talent pipelines, guide talent management efforts, produce better internal and external business outcomes. Diversity can facilitate more effective and results oriented collaboration, and in many situations it can mitigate risk.

There’s so much data floating around that proves diversity is good for business on multiple fronts. I just read an excellent piece from Tech Crunch on the competitive advantages diversity can bring. It was chock full of data points, many I’ve seen in myriad studies, on websites and in speeches. For instance:

“A 2015 McKinsey study found ethnically diverse companies were more than 35 percent more likely to outperform their industry counterparts. Even more significantly, each 10 percent increase in racial and ethnic diversity on the senior executive team yielded on average a rise of 0.8 percent in earnings before interest and taxes (EBIT).”

That’s real money directly attributable to diversity.

Or, check out these data points from the same article:

“ … a Credit Suisse study found that companies with higher female representation at the board level or in top management exhibit higher returns on equity, higher valuations and also higher payout ratios. Dow Jones studied more than 20,000 venture-backed companies over a five-year period and found that those companies with at least one woman executive were more likely to succeed than those with only men in leadership positions.”

That snippet didn’t throw around any hard or exact figures, but higher returns on equity, higher valuations and higher payout ratios, success in business, those word combos equal cash, kids. Bucks, dinero, moola, loot. And if we’re not just talking about dollars and sense in the marketplace, diversity also generates goodwill, brand equity, customer loyalty. And guess what? All of those things generate cash too.

So, I ask all of you discerning business professionals out there, if there’s a proven way to ensure that your efforts at work mean your company will make more money and solidify its place as a leader in the global marketplace, why wouldn’t you take it?

Fear.

Here’s another question for you: If you are scared of someone who’s different — and fear manifests in many different ways: aggression, distance, hyper-sensitivity, etc. — what are you really scared of? Of giving someone unproven a chance? Don’t be. Someone gave you a chance when you were new and untried. They mentored and nurtured and helped you learn from your mistakes, and you turned out great.

Are you scared a minority will eclipse you? Hence, you feel it’s in your best interest to keep a lid on your professional competition? Don’t be silly. Insecurity is weakness.

Be the guy or the girl who had the brains to prepare and package potential greatness, and unleash it on the competition. Be the leader who develops other leaders no matter what they look like or where they come from. Be the manager who ignores petty, temporary discomfort in favor of getting the job done, and done well, by using every available talent resource. Be the person responsible for developing the woman, gay man or whoever it is who shows that they want to take the bit between their teeth and run with it, and let the company reap the benefits.

Leaders who embrace diversity, who welcome it – despite any discomfort or unknowns — who enable it and measure it, they rarely regret it. These people aren’t necessarily fearless. They may still have valid questions and concerns.

But they’re willing to ask the tough questions, to challenge the status quo, to resist what that Tech Crunch article so eloquently called “a natural tendency toward sameness” that “has become a liability in today’s marketplace.” Leaders who understand the value of diversity are willing to use natural fear not to stall but to invigorate workforce productivity and effectiveness, to build fabulous cultures that talent queue up to join, and ultimately to knock those bottom line figures out of the park.

I ran across an Insta post on Scandal actor Tony Goldwyn’s account a few weeks ago. He was acknowledging Women’s Equality Day, and it reads: The rise of women does not mean the fall of men.

Allowing others who are different to step up to the plate or sit down at the table doesn’t mean those who are already in play will lose their place. Some may. No lie. I know it. There aren’t infinite slots at the top or unlimited corner offices. It’s natural that some rise and some fall based on talent, opportunity, work ethic. There are any number of variables that determine who is a success and who is a failure in the business world. But will you cheat to maintain your position, your corner office?

I have one more question for leaders: Are you scared to compete?

Kellye Whitney is the associate editorial director for Workforce. Comment below or email editors@workforce.com.