As PRIDE month concludes, we look back at a historic year for the rights of LGBTQ+ employees, and ahead for what this means for employers as they manage their workforce.

Looking back, it was June 2020 when the Supreme Court held that discrimination on the basis of sexual orientation and transgender status constitutes unlawful sex discrimination under Title VII of the 1964 Civil Rights Act. We’ve discussed the landmark Bostock v. Clayton County decision in-depth before. Fast forward, one year later on Bostock’s first anniversary, the EEOC issued a slate of new resources to help employers comply with new LGBTQ+ protections.

According to Catalyst.org, members of the LGBTQ+ community still face high rates of discrimination in the workplace. At least 20 percent of LGBTQ+ employees report being discriminated against when applying for jobs and 52 percent report having been subjected to lesbian or gay jokes in the workplace.

Discrimination is bad for business, as it impacts employee retention. Nearly half of LGBTQ+ workers in the United States are closeted at work with 10 percent having left a job because of an intolerant environment. Meanwhile, 25 percent reported staying in a job because of an inclusive culture.

As discrimination in the workplace persists, so too do related lawsuits. In fact, before we were able to finalize this short blog, two new cases hit the press. One involved a former Boeing contractor’s suit against a staffing agency claiming she was fired for being a transgender woman. The other involved a former Iowa Democratic official’s suit against the state’s prior Republican governor alleging the governor cut his salary and urged him to resign because he was gay. Without commenting on those claims, no employer wants to be in that headline.

So how do you avoid being in the headlines? Start by knowing the law. Here’s what you need to know about the new EEOC guidance:

How has the EEOC interpreted Title VII protections after Bostock?

The EEOC’s post-Bostock guidance outlines the types of actions it considers unlawful discrimination or harassment based on sexual orientation or gender identity.

  • It doesn’t matter what clients or customers prefer. When it comes to the rights of your LGBTQ+ employees, your clients are NOT always right. For example, the EEOC states that it would be unlawful to move an LGBTQ+ employee out of a public-facing position because of real or perceived client preferences about sexual orientation or gender identity.

So employers should avoid acting on customer suggestions about how client/customer-facing roles must “look” like a certain gender.

  • Employers cannot discriminate based on non-conformity with gender stereotypes. For example, employers cannot require transgender employees to dress in accordance with the sex they were assigned at birth. This is true regardless of whether an employer knows the employee’s gender identity or sexual orientation.

Employers should avoid the “male” and “female” dress codes. Instead, employers should require their employees to be neat, professional, and wear clothing that is appropriate for their job.

  • Employers can have separate, sex-designated bathrooms, locker rooms, and showers. However, the EEOC’s position is that employers may not deny an employee equal access to a bathroom, locker room, or shower that corresponds with the employee’s gender identity.

While, this can be tricky to comply with, we have not found it to be an insurmountable problem with most employees. The key is often some education. You may just need to give some explanation to employees, especially if there has been a gender transition, as to who is using the facilities.

  • Employers cannot disregard an employee’s preferred name or pronouns. This gives much more weight to the preferred pronouns that some have opted to include in their signature block and LinkedIn profiles. While accidental misuse of a transgender employee’s preferred name and pronouns does not constitute a Title VII violation, intentional and repetitive use may contribute to a hostile working environment.

Employers, train your employees and especially managers to be sensitive to proper name and pronoun use.

How is the EEOC enforcing Title VII protections for LGBTQ+ workers?

Among their recent notable victories, EEOC litigators secured a $175,000 judgment against a retail employer for subjecting a gay male and female employees to a hostile work environment based on sex when a manager subjected those employees to unwanted sexual comments, photographs, and touching and the employer failed to adequately intervene. The Commission also filed one of the lawsuits decided in the Bostock. That case, which dealt with a transgender employee’s clothing preferences and subsequent termination, resulted in a more than $250,000 judgment against the funeral home that fired her.

Conclusion

What employers should know is there are many different gender identities and they are all under a protected class under Title VII. And the EEOC’s interpretation of Title VII protection after Bostock has made is that much easier for an employer to fall out of compliance and susceptible to litigation.

We recommend you review your antidiscrimination policies and employee handbook to address the EEOC’s new enforcement positions. If you have any questions related to the laws protecting LGBTQ+ workers, reach out to your Kelley Drye contact for guidance.

Sending a clear message to employers and employees alike on the prickly subject of mandatory vaccination programs, Texas federal Judge Lynn N. Hughes just dismissed outright a lawsuit brought by 117 employees of a Houston hospital, challenging their terminations for refusal to be vaccinated. The court rejected the employees’ wrongful termination claims under Texas state law as well as their arguments that the Hospital’s policy violated federal law.

It’s also not just the result, but the strong language of the decision, which should give employers comfort that a mandatory vaccination program is lawful.

Background

On April 1, 2021, the Houston Methodist Hospital announced a policy requiring all employees be vaccinated against COVID-19 at the Hospital’s expense by June 7, 2021. As that date approached, Plaintiff Jennifer Bridges and 116 other Hospital employees who had refused that vaccine, filed suit in the Southern District of Texas to block the Hospital’s vaccination requirement and their terminations, arguing that the Hospital’s mandatory vaccination program was unlawful.

Plaintiffs argued that the vaccination program constituted wrongful termination under Texas law and that the injection requirement also violated public policy. The Court rejected these arguments because the Plaintiffs did not establish the essential elements of the wrongful termination claim and because Texas does not recognize a public policy exception to an at-will employment relationship. Among the more absurd arguments advanced by the plaintiffs were that under the Hospital employees were being treated as participants in a human trial in violation of the Nuremburg Code. Continue Reading Judge Holds that a Hospital can Fire Employees Who Refuse the Vaccine

Original post on June 1, 2021 (“Making the Workplace a Safer Place: A Job for New York’s HERO Act”)

Key takeaways for New York employers from the NY HERO Act, as amended:

  • The NYS DOL must publish a model safety standard by July 5, 2021.
  • 30 days thereafter, New York employers must either adopt the model standard or create their own health and safety plan to prevent occupational exposure to airborne infectious diseases, which meets or exceeds the minimum requirements established by the NYS DOL.
  • Every employer must provide its prevention plan to its employees, within 30 days after adoption of the plan, within 15 days after reopening after a period of closure due to airborne infectious disease, and to any newly hired employee, upon hiring the new employee.
  • Employers must permit employees to establish joint employer-employee workplace safety committees, beginning on November 1, 2021.

Continue Reading New York Gives Employers More Time to Be a HERO

On January 21, 2021, President Biden enacted the Executive Order “Protecting Worker Health and Safety” which tasked OSHA with developing safety measures to help protect workers as the nation continued its post-pandemic reopening. On June 10, 2021, in response to that direction, OSHA issued an emergency temporary standard (“ETS”) focused on healthcare settings where workers are most likely to have contact with individuals infected by the virus.

Below are some of the salient points of the ETS: Continue Reading OSHA’s Emergency Temporary Standard for Healthcare

WORKing Lunch Labor & Employment Webinar Series

Tuesday, June 22nd at 12:30pm ET

Restrictive Covenants 101: NDAs, Non-Competes & Other Tools To Protect Your Company

A company’s confidential information and customer relationships are its lifeblood—and are the assets that can walk out the door too easily with a departing employee. Too few companies take a considered approach to protecting those assets. NDAs and noncompetes can help, but using them without a holistic strategy can be worse than no protection at all. Join the Kelley Drye Labor and Employment team for a practical look at how to use—and not to use—restrictive covenants, and how to tailor them to your company’s unique needs.

Employers have been waiting for some definitive guidance from the EEOC on the issue of vaccines in the workplace – and here it is!

On May 28, the EEOC updated its Technical Assistance Guidance and has now stated with certainty that employers CAN indeed require employees to be vaccinated before coming in to the office or workplace. The updated guidance also addresses accommodations for the vaccinated, vaccine incentives, and vaccines for pregnant employees, among other questions. However, since this was drafted before the CDC came out with its latest guidance, it does not specifically address all issues related to the handling of unvaccinated and vaccinated employees in the workplace.

Below are some key points of the new guidance:

Mandatory Vaccination is Lawful, But Accommodations Must Be Offered

Even though many employers have opted against mandatory vaccination for their employees, the EEOC made clear that they can, in fact, mandate vaccinations for those who want to report to work. The key for employers, however, is they must engage in the interactive process and provide reasonable accommodations under the ADA and Title VII, for eligible employees seeking an exception to the mandate.

The EEOC offers some examples of possible accommodations, most of which are no surprise, such as allowing unvaccinated employee to wear a face mask, maintaining social distance from others, working a modified shift, periodic COVID-19 testing, being allowed to telework or, as a last resort, reassignment to another position. Continue Reading The EEOC’s Latest Guidance on COVID Vaccine

As employees who have worked remotely for months begin to slowly return to their offices, more guidance is emerging as to what their employers can and should do to keep them safe. Just this weekend, the EEOC came out with long-awaited guidance stating that employers may require those who come to the workplace to be vaccinated, which we will cover in a separate post.

States are also issuing their own new rules. As an example, in early May, New York Governor Cuomo signed into law the New York Health and Essential Rights Act (HERO Act), which requires all employers, of any size, to establish a health and safety plan to prevent occupational exposure to airborne infectious diseases. The HERO Act also permits employees, later in 2021, to establish joint employer-employee safety committees.

Below is a summary of the HERO Act’s requirements for New York employers. Continue Reading Making the Workplace a Safer Place: A Job for New York’s HERO Act


During the Trump years, the National Labor Relations Board (meaning, the actual five-member Board in Washington, whose decisions drive interpretations of federal labor law) got a lot less friendly to organized labor, and a lot friendlier to employers. That meant a lot of things, including making it easier for unions to prove that two employers were really one “joint” employer, harder for employees to organize, and harder for employers to unilaterally change terms and conditions of employment without bargaining.

The Board is less like the lifetime-appointed Supreme Court and more like your new boss who doesn’t care how your old boss did things. That’s because Board members serve out fixed but limited terms—meaning that a new Presidential administration brings new Board members when the terms of existing Board members expire. While the Board claims to rely on its own precedents (and, to some extent, does), Board members are fundamentally political appointees, and their interpretations of labor law mirror the labor agenda of the Presidents who appoint them.

Enter Biden’s appointment of Gwynne Wilcox to the Board on May 26. Biden has not exactly been subtle about his labor policy agenda: as he announced the American Jobs Plan on March 31, he reminded us that he’s “a union guy. I support unions. Unions built the middle class. It’s about time they start to get a piece of the action.”

A piece of the action, indeed. Ms. Wilcox clearly knows what she’s doing when it comes to federal labor law, but what she’s doing is deeply informed by what she has done. She’s a dyed-in-the-wool union-side attorney from a law firm that exclusively represents unions, and from a position with one of the largest and most powerful unions in the Northeast, which is part of the SEIU. Continue Reading The New NLRB: Protecting Workers from Their Own Employers?

Last week, the Trump-era independent contractor classification rule was officially eradicated by the U.S. Department of Labor, (“DOL”) due to its apparent inconsistency with the Fair Labor Standards Act (“FLSA”). The rule, which we previously covered here, provided a 5-factor “economic reality” test for determining whether workers are independent contractors or employees. The two “core factors” of the test included the nature and degree of the worker’s control over the work and the worker’s opportunity for profit or loss. These factors focused on the worker’s control over the work and earnings based upon individual initiative or investment, making it easier for them to be classified as independent contractors.

Even though the Trump Administration issued the rule on January 7, 2021, intending for it to take effect on March 8, 2021, it never saw the light of day. The new Biden-administered DOL initially delayed the effective date until May 7, 2021, and on the eve of the new effective date, withdrew the rule in its entirety. Labor Secretary Marty Walsh, while acknowledging that classifying workers as independent contractors may be appropriate under some circumstances, stated that the five-factor test isn’t the right approach. After considering public comments, the DOL announced that the independent contractor rule was not “fully aligned with the FLSA’s text or purpose, or with decades of case law describing and applying the multifactor economic realities test.”

For the second time in two years, the U.S. House of Representatives recently passed the Protecting the Right to Organize Act, which would apply California’s ABC test to labor organizing. Although it faces an uphill battle in the Senate, employers should prepare for a ramp up enforcement of worker misclassifications under the new administration’s DOL, which will likely support efforts to establish a standard for independent contractors modeled after the employee-friendly ABC test.

Stay tuned to LaborDaysBlog.com to monitor more changes in employment and labor laws by the Biden administration.

President Biden announced that his administration had reached its goal of 200 million vaccine shots administered during his first 100 days in office. Not stopping there, the President also made a special call to employers across the United States to use their unique resources to help their employees and others get vaccinated.

To encourage more people to get vaccinated, President Biden, also announced a paid leave tax credit that will offset the cost for employers with fewer than 500 employees to provide full pay for any time their employees need to get a COVID-19 vaccination or recover from their vaccination.

Here’s an excerpt of the announcement:

A Tax Credit for Small and Medium-sized Businesses to Fully Offset the Cost of Paid Leave for Employees to Get Vaccinated and Recover from Any After-Effects of Vaccination. Under President Biden’s American Rescue Plan, a paid leave tax credit will offset the cost for businesses and nonprofits with fewer than 500 employees for up to 80 hours (i.e. 10 work days) up to $511 per day of paid sick leave offered between April 1 and September 30, 2021. This tax credit will allow these employers to provide paid leave for employees to get a COVID-19 vaccination and for any time their employees may need to recover from that vaccination at no cost to the employer. This tax credit will apply to nearly half of all private sector employees in America. The Internal Revenue Service (IRS) has released and posted a fact sheet to educate employers on how to claim the paid sick leave credit on their quarterly tax filings. For more details on how the vaccination-paid leave tax credits from the American Rescue Plan will work for employers to enable employees to get vaccinated and recover from after-effects of vaccination, as well as for other purposes, please consult this snapshot from the Department of the Treasury.