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Top Questions of Employers - Sexual Orientation and Gender Identity Law

Client Alert

One month ago, the United States Supreme Court, in Bostock v. Clayton County, determined that federal law (Title VII of the Civil Rights Act of 1964) protects employees on the basis of sexual orientation or gender identity.  Our earlier post discussed the full decision.  The purpose of this article is to share and address the Top Questions of Employers since that decision was rendered.

Q:  What do we tell our employees?

In strictest terms, the Bostock decision evaluated Title VII, which generally means it only applies to employers who have 15+ employees working 20+ weeks per year.  Also, Bostock only prohibits terminations because of sexual orientation or gender identity.

In practice, however, federal, state, and local courts, laws and agencies have broadly been protecting individuals on the basis of sexual orientation or gender identity for decades.  Remind your employees that the Anti-Discrimination Policy in your handbook prohibits any harassment or discriminatory conduct on the basis of sexual orientation or gender identity.  This includes hiring, firing, promotions, discipline, raises, bonuses, and other terms and conditions of employment.  It’s the same strict prohibition against conduct relating to race, creed, color, alienage or national origin, ancestry, citizenship status, religion, marital status, veteran or military status, age, sex, pregnancy, disability, or genetic information.

The final recommendation is to remind employees that “I was joking” is not a defense to a harassment claim.  Jokes regarding sexual orientation or gender identity are prohibited in the workplace.

Q:  What do we do about bathrooms and changing rooms?

As everyone knows, the main reason I decided to attend law school was to concentrate on the complexities of bathroom law.  Now, after practicing law for 20 years, it’s finally my time to shine.

The general recommendation is that employees should be permitted to use the restrooms consistent with their gender identities.  The Bostock decision specifically avoided this question, but it has been addressed elsewhere.  The Occupational Safety and Health Administration’s (OSHA’s) Guide to Restroom Access for Transgender Workers includes, as a Core Principle, that all employees, including transgender employees, should have access to restrooms that correspond to their gender identity.

Likewise, the Equal Employment Opportunity Commission (EEOC) has regularly guided employers to allow employees to use restrooms and locker rooms based upon the employee’s gender identity, regardless of sex at birth and regardless of the status of any sex-reaffirmation procedures.

Finally, over a dozen states and cities already have laws/codes requiring gender-neutral restrooms.

Exceptions from the general recommendation may exist based upon unique circumstances (i.e., religion or protective gear), but they are limited and require analysis of the totality of the circumstances.   

Q:  What do we do about dress codes?

We generally begin answering this question with our own question: Do you enforce a dress code policy, let alone a sex-specific dress code policy?  Usually, the answer is “no.” Employers can implement gender-specific dress codes if they are not arbitrarily enforced and do not favor one gender over another.  Employers are permitted to maintain sex-specific dress codes and grooming standards when they involve a bona fide occupational qualification (BFOQ) reasonably necessary to the regular operation of the business.  The real question is what to do about dress codes based on gender identity and expression.   

Again, the Bostock decision did not address dress codes, even though one of the underlying cases included an issue of an employer refusing to allow an employee to dress according to her gender identity and expression.  However, the EEOC and state and local courts and laws have initiated the trend to protect employees’ rights to dress according to their gender identity and expression.

Our recommendation is to implement a gender-neutral dress code. A concise policy requiring employees to “appear for work dressed professionally in clean attire or risk being sent home to change” can be enough.  If an employer implements a detailed policy, then we offer the same general recommendation: employees should be permitted to dress consistent with their gender identities and gender expression.

Q:  Anything else we need to know?

The protections for employees on sexual orientation and gender identity will continue to expand, and that expansion is expected to be at the state and local levels.  The protections are unique to each jurisdiction and subject employers to a variety of requirements.  For example, the New York City Human Rights Law requires employers to use the name, pronouns, and titles with which an employee identifies, regardless of the person’s sex assigned at birth, anatomy, gender, medical history, appearance, or the sex indicated on the person’s identification.  It is important for all employers to review their federal, state, and local obligations on a regular basis for each of their locations.

For additional information, please contact Jeffrey C. Miller, jcmiller@bmdllc.com 216.658.2323, or any member of the Labor and Employment Team of Brennan Manna & Diamond LLC.


Telehealth Flexibility Updates: HIPAA, DEA, and CMS

The Covid-19 Public Health Emergency (PHE) officially ended on May 11, 2023. But what does that mean for telehealth, a field that expanded exponentially during the PHE? Fortunately, many of the flexibilities will remain intact, at least temporarily. This client alert presents a brief overview of the timelines that providers need to follow, but for a more comprehensive review of telehealth flexibilities and when they will end

WEBINAR SERIES RECAP | Ending the Public Health Emergency + Post-Pandemic Check-Up

Some may take the position that the rest of the country already returned to a new “normal” following the COVID-19 pandemic.  But healthcare providers continue to implement COVID protocols and navigate the ever-changing healthcare regulations at both the federal and state levels.  It is important for healthcare providers to take time for a “Healthcare Check-Up” with the start of 2023 and the ending of the Public Health Emergency (“PHE”).

Sharp Rise in False Claims Act Cases - Navigating the FCA Waters

Recently, on April 18, 2023, the United States Supreme Court heard arguments regarding the FCA’s scienter, or mental state, requirement. To prove violation of the FCA, the statute requires that a defendant “knowingly” file false claims for payment. The term “knowingly” is defined within the statute to mean a person that acts with actual knowledge, deliberate ignorance, or reckless disregard. Circuit courts are split on how to interpret and apply the knowledge element of the FCA, and based on the Supreme Court’s decision, there will be a large impact on healthcare defendants and their businesses as well as anyone who contracts with, or receives money from, a federal program. A broader interpretation of the FCA would unnecessarily target and stifle healthcare, and other businesses, for simple errors in daily operations. This goes against the intended application of the FCA, which was to prevent fraudulent activity.

Areas of Opportunity in Columbus: Highlights from the Columbus Opportunity Summit

On April 27, 2023 Columbus Business First held its annual Columbus Opportunity Summit, bringing together business and economic development leaders to provide an update on how Central Ohio is preparing for expected growth in the coming years, an issue heightened by the arrival of Intel at its 1,000 acre site in Licking County, just outside of Columbus. The site will be home to two new chip factories with room to grow to a total of eight factories and is a $20 Billion investment.

BREAKING: Biden Administration Has Officially Ended the Two Remaining COVID Vaccine Mandates

As of May 1, 2023, the Biden Administration has officially ended the two remaining COVID vaccine mandates: (1) the Federal Contractor Mandate, and (2) the CMS Healthcare Provider Vaccine Mandate.