In a landmark decision issued on June 15, in the case of Bostock v. Clayton County, GA, the U.S. Supreme Court expanded federal protections against workplace discrimination to include both sexual orientation and gender identity.
In its ruling, the court concluded that it is impossible to discriminate against an employee due to their sexual orientation or gender identity without engaging in sex discrimination, a violation of Title VII of the Civil Rights Act of 1964. According to the court, “homosexuality and transgender status are inextricably bound up with sex” because “discrimination on these grounds requires an employer to intentionally treat individual employees differently because of sex.”
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In response to the Bostock decision, HR professionals must immediately review and update all workplace policies and provisions relating to equal employment opportunity. If you are located in a jurisdiction that prohibits discrimination based on sexual orientation and sexual identity under state or local law, then your documentation should be correct; however, you should still review it to ensure compliance. Among documentation you can expect to update are job descriptions; job application forms; employee handbooks; anti-harassment policies; equal employment opportunity policies and statements; workplace training materials and postings that address employee rights.
To comply with Title VII, assuming your organization employs 15 or more workers, it is critical that all written information listing legally protected categories includes sexual orientation and gender identity.
Protecting your organization against legal claims and reducing risk of liability are your responsibility as an HR leader. Particularly in view of recent developments, including the Bostock decision, the #MeToo movement and the Black Lives Matter movement, employees are educated about and alert to their workplace rights and potential violations. The best way to avoid legal claims and liability is to ensure that your organization makes a genuine commitment to fair treatment of all employees and embraces a consistent zero-tolerance response when unfair treatment, potentially discriminatory or harassing conduct, and employee complaints or concerns do arise.
Diversity, inclusion and equity are the catchwords of our time, but lip service is not enough. HR now is challenged to strengthen culture in a meaningful way that embeds diversity, inclusion and equity.
Thoughtful and comprehensive workplace training for all employees is the key to success in this area. From the CEO to every part-time worker, everyone should be included in small-group training and discussion sessions so that your entire team has the same information and expectations. Effective training will model and encourage open communication about issues that are often sensitive and difficult to discuss. The following are four themes that should always be emphasized in workplace training and communications related to diversity, inclusion and equity.
Nip Problems in the Bud
Often, employees feel that a problem must rise to a certain level of severity to warrant an official complaint. However, as everyone knows, conflicts that are swept under the rug are most likely going to grow and worsen. To enable HR departments to intervene and stop problems from escalating, potentially leading to legal claims, employees should be encouraged and incentivized to engage in open communication about their concerns. To engender open communication, employees must be confident that they will be treated with dignity and respect, that their issues will be addressed promptly and discreetly, and that they will be protected from retaliation if they bring to light a concern or conflict. The message to employees must be that they are not “throwing someone under the bus,” but rather are serving an important and valued role in nipping problems in the bud.
The best way to avoid legal claims and liability is to ensure that your organization makes a genuine commitment to fair treatment of all employees.
It is easy to turn a blind eye to problems. Most individuals are both conflict- and risk-averse, so managers and supervisors must understand that a critical part of their job is to identify and follow up on issues that may give rise to conflict or perceptions of unfairness. Managers and supervisors should be on the alert so that they can acknowledge and address issues when they occur and work with HR, as needed, to address areas of concern before they develop into serious problems. Often, supervisory employees wait to receive a complaint before taking any action; however, if employees with supervisory responsibility are proactive, if they listen and watch and respond appropriately (with HR’s support), they will engender a spirit of trust and open communication while effectively helping to reduce risk of liability.
It is critical to address problem situations when they arise. When any supervisory or management-level employee becomes aware of an instance of conduct that could be perceived as unfair, discriminatory or harassing, a prompt response is required. It is critical for your HR team to frequently check-in and communicate with these employees to support them in promptly and effectively handling problem situations. They should be encouraged and incentivized to bring questions and concerns to HR to determine an appropriate response based on the facts and circumstances. Legal counsel should be involved if any question arises about how to properly manage a troubling situation.
The perception of employees who feel they have been subjected to unfair, discriminatory or harassing treatment should be HR’s focus. Even if you or others may not agree that the conduct is concerning, remember that an employee who perceives a problem must be treated with dignity and respect. Assuming the employee’s concerns are genuine, endeavor to make sure that the individual feels that they are being heard and their problem is taken seriously and addressed appropriately. Complaints of discrimination or harassment must be promptly investigated, addressed and remedied as necessary.
Finally, HR leaders face enormous challenges and opportunities in these turbulent times. Your impact can be significant. When your organization adopts a zero-tolerance approach to discrimination and harassment and invests in proactively creating a workplace in which open communication, diversity, inclusion and equity are genuinely valued, the result will be both a more productive workforce and reduced risk of legal claims and liability.
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