How much do you know about the rights of LGBT employees? Take our quiz and find out! As always, the answers will appear after each question, so you can cheat all you want, and we’ll never know. At the end there will be a special prize, selected especially for you!
Ready? Here we go!
No. 1: The U.S. Supreme Court recently decided in Bostock v. Clayton County that Title VII, which prohibits discrimination because of “sex,” applies to discrimination based on sexual orientation and gender identity. What was the basis for the Court’s decision?
A. Ya gotta roll with the times. Even though “sex” used to mean only biological men and women, it obviously means a lot more today.
B. When Congress enacted Title VII in 1964, everyone understood “sex” to include sexual orientation and gender identity.
C. There is no need to change or expand the meaning of “sex.” If an employer treats an employee of one sex differently than a similarly situated employee of another sex, then it is discriminating on the basis of “sex” in the traditional sense. Therefore, if an employer takes action against a male employee because he is attracted to men or presents as a female but takes no action against a female employee because she is attracted to men or presents was a female, then the employer is discriminating on the basis of “sex.” In the old-fashioned way.
D. Neil Gorsuch and John Roberts are a couple of dirty dogs.
ANSWER: C. The Court majority — Justice Neil Gorsuch, who wrote the opinion, and Chief Justice John Roberts, and Justices Stephen Breyer, Ruth Bader Ginsburg, Elena Kagan, and Sonia Sotomayor — went with this “conservative” argument made by those who argued in favor of Title VII coverage for LGBT rights. (In my opinion, it was a brilliant choice by the lawyers and probably helped to bring Gorsuch and Roberts over to their side.)
No. 2: You’re the Vice President of Human Resources for a company based in New York City. How much impact will the Bostock decision have on your company and your job?
A. Virtually none.
B. A ton!
ANSWER: A. The Supreme Court decision applies to Title VII only. If you’re in New York City, you are already used to state laws and city ordinances prohibiting discrimination on the basis of sexual orientation and gender identity. Assuming you were already complying with those laws (and I have no doubt that you were), then the Court’s decision about Title VII shouldn’t affect you or your company much at all.
No. 3: You’re the VP of HR for a company based in North Carolina — which has no state-law LGBT protections — but you have voluntarily adopted a company policy prohibiting discrimination and harassment based on LGBT status. How much impact will the SCOTUS decision have on your company and your job?
A. Virtually none.
B. A ton!
C. Maybe a teensy bit . . .
ANSWER: C. If you already have a policy prohibiting LGBT discrimination and harassment (and assuming you follow it, and I have no doubt that you do), you shouldn’t be affected much by the Supreme Court decision. But you have lost a legal defense that could have resulted in dismissal of a wrongful termination lawsuit at the earliest stages.
(That defense goes like this: “Even if we did discriminate — which we deny — LGBT discrimination isn’t against the law, so the court has to throw out this lawsuit right off the bat!” Your lawyers won’t be able to do that any more because LGBT discrimination is now a valid legal claim. That isn’t to say you might not be able to win your case at some later point — for example, if you are able to prove that the employee was actually terminated for poor performance or another legitimate non-discriminatory reason.)
No. 4: You are VP of HR in a state that has no LGBT protections, and you don’t have a policy prohibiting discrimination or harassment based on sexual orientation or gender identity. Now that federal law has changed, what should you do?
A. Update your EEO policy to include sexual orientation and gender identity.
B. Include in your harassment training some discussion and examples of harassment based on sexual orientation and gender identity.
C. Conduct a phony “reduction in force” and terminate all of your LGBT employees.
D. A and B.
E. All of the above.
ANSWER: D. If you have not been protecting your gay and transgender employees as a matter of policy and practice, and if LGBT discrimination has not been prohibited in your jurisdiction, then you will need to get yourself and your employees up to speed quickly. Amend your EEO and harassment policies now. And this topic should be included in any training you provide to members of management as well as your rank-and-file employees.
No. 5: You are VP of HR for a company where gay and lesbian employees are in the majority. One of your employees is straight, and he is being harassed about it by his co-workers. If he gets fed up and goes to the EEOC, could he have a valid Title VII “sexual orientation” charge against the company?
ANSWER: A. The new interpretation of Title VII would presumably also apply to employees who are discriminated against or harassed for being straight (or cisgender). The victim is still being harassed based on sexual orientation (or gender identity), which is now prohibited by Title VII.
No. 6: You are VP of HR for the staff at St. Conservative Traditional Values School. Your teachers are not ordained ministers, but they lead their classes in an opening prayer and a closing prayer, do the readings at weekly services, and provide an hour each school day teaching the Conservative Traditional Values faith to the children. Their contracts also provide that they will uphold Conservative Traditional Values . . . er, values. You have just learned that one of your teachers eloped last weekend with someone of the same sex. The Conservative Traditional Values Church is fine with same-sex marriage, but teaches that it’s a sin to elope. Can you still terminate the employee after the Supreme Court’s decision?
A. No! What are you, crazy?
B. Yes, you almost surely can.
C. No, but you can try eliminating this employee in a phony “RIF.” You’ll just have to wait at least a year to backfill the position — otherwise, everyone will know it was phony.
ANSWER: B. The Supreme Court resolved that issue this week in another decision, in which it ruled that the First Amendment protects the right of religious organizations to make employment decisions without judicial interference. The Court’s decision doesn’t apply only to employees who violate the tenets of their employers’ faith — it applies to all employment decisions pertaining to “ministerial” employees. Because your teachers help to instruct the children in the faith, they would almost certainly be considered “ministerial” even though they are not ordained and may not even be “lay ministers.” If they’re “ministerial,” they would not be able to bring claims against your school for any kind of discrimination under federal law — including but not limited to LGBT discrimination.
4-6 correct: Fantastic! Your heart must be swelling with pride!
2-3 correct: Fair to middlin’. (Not that there’s anything wrong with that.)
Robin Shea is a Partner with the law firm of Constangy, Brooks, Smith & Prophete, LLP and has more than 20 years’ experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act), the Genetic Information Non-Discrimination Act, the Equal Pay Act, and the Family and Medical Leave Act; and class and collective actions under the Fair Labor Standards Act and state wage-hour laws; defense of audits by the Office of Federal Contract Compliance Programs; and labor relations. She conducts training for human resources professionals, management, and employees on a wide variety of topics.