Building a More Inclusive Workplace for LGBTQ+ Employees: Bostock and Beyond

By Katie Hansen and Matthew Gallagher

In June 2020, the Supreme Court issued a landmark decision in Bostock v. Clayton County, Georgia, 590 U.S. __,140 S. Ct. 1731 (2020), holding that sexual orientation and gender identity are protected under Title VII and discrimination against an employee on either basis is considered sex discrimination. 

Most employers and human resources professionals immediately understood the core consequence of this decision:  employers cannot take adverse action against employees based on their sexual orientation or gender identity.  However, Bostock left many questions unanswered.  In fact, the majority specifically acknowledged that it did not purport to decide or otherwise provide guidance on a series of related potential workplace issues, including issues surrounding sex-segregated changing areas and restrooms.  Whether other policies or practices constitute unlawful discrimination, the majority noted, would be determined in future cases.  The federal courts have already begun to address some of those questions.  The Fourth and Eleventh Circuit Courts of Appeals, for instance, recently issued decisions providing guidance relevant to employer policies requiring the use of general-neutral restrooms by transgender employees.  This article addresses those decisions and suggests a series of additional steps employers can take to ensure they continue to foster diversity and inclusion in the workplace. 

Employment Protections for LGBTQ+ Employees – Bostock

In Bostock, the Supreme Court addressed three consolidated cases in which employers terminated individuals’ employment based on sexual orientation and/or gender identity.  In issuing its landmark decision, the Court held that an employer who does so violates Title VII by discriminating against an employee on the basis of sex.  Writing for the majority, Associate Justice Neil Gorsuch stated “[i]t is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”  Because discrimination based on LGBTQ+ status requires an employer to intentionally treat individual employees differently because of their sex, the Court reasoned, an employer who penalizes an employee for their sexuality or gender identity violates Title VII.  In other words, according to the Court, an employer must necessarily refer to that individual’s sex in determining its acceptance or rejection of the employee’s behavior.  Specifically, the majority continued, “[a]n 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.”  Thus, sex “plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.” 

Sex-Segregated Bathrooms and Gender Identity – The Courts of Appeals Address Protections for LGBTQ+ Students in Grimm and Adams

In Grimm v. Gloucester County School Board, the Court of Appeals for the Fourth Circuit held the Glouceter County, Virginia school board violated Title IX of the Education Amendments Act of 1972 (“Title IX”) when it refused to allow a transgender student to use the boys’ bathroom at Gloucester High School because he was identified as female at birth.  Despite that initial identification, Gavin Grimm identified himself as male and, by his senior year, he was presenting as a male in all aspects of his life.  Grimm’s healthcare provider diagnosed him with gender dysphoria and recommended both that he present as male and be considered a male and allowed to use the restroom consistent with his own gender identity.  Grimm ultimately completed a gender transition and the Virginia Department of Health ultimately re-issued him a birth certificate reflecting his status as a male.  Notwithstanding Grimm’s gender identity and diagnosis and his doctor’s recommendations, after receiving complaints from those in the school and surrounding communities, the school board decided not to allow Grimm to use the boys’ restrooms.  Grimm filed suit, alleging among other things that the school board discriminated against him based on his sex in violation of Title IX.  The district court granted summary judgment in Grimm’s favor on the Title IX claim and ultimately awarded injunctive relief and nominal money damages.  The board appealed.

Relying heavily on the Supreme Court’s decision in Bostock, the Fourth Circuit affirmed the district court’s decision, holding that the school board treated Grimm differently based on his gender and that refusing to allow him to use the boys’ bathroom, therefore, constituted discrimination under Title IX.  In so holding, the Fourth Circuit made clear that the school board’s policy precluding Grimm and any other transgender student from using gender-affirming restrooms discriminated against them on the basis of their sex and violates Title IX.  The court also held that the school board’s refusal to amend Grimm’s records to reflect his status as a male violated Title IX.  

The Eleventh Circuit issued a similar decision in Adams by and through Kasper v. School Board of St. Johns County, Florida.  There, a school board similarly denied Drew Adams, a transgender male, the right to use the restrooms consistent with his gender identity.  

While both cases involved claims under Title IX, these decisions directly impact employers.  Congress modeled Title IX, which prohibits sex discrimination by any elementary or secondary school and any college or university that receives federal financial assistance, after Title VII and passed it with the explicit understanding that its interpretation of discrimination would be interpreted consistent with Title VII.  As such, Title IX decisions interpreting discrimination on the basis of sex are instructive for employers assessing their legal duties under Title VII.

Considerations for Employers

So, what does this mean for employers of LGBTQ+ individuals?  What exactly is required?  How can we foster more inclusive and welcoming workplaces for all? 

Employers and HR professionals should already be reevaluating their anti-harassment, anti-discrimination and Equal Employment Opportunity policies to ensure compliance with federal law post-Bostock.  Given the relation between Title IX and Title VII, employers should consider, at a minimum, reviewing their restroom/changing room accommodation policies and their gender recognition policies. 

Employers also should strive to create a more welcoming and inclusive environment for all employees.  After all, studies have repeatedly shown that diversity in the workplace is good for business.  Diverse workforces are more likely to have insight into customers’ motivations.  Employees with different backgrounds and life experiences also help increase creative-thinking and solutions to best address customers’ needs.  Diverse workforces also statistically boast higher employee morale and good will in the community.  Accordingly, below are a few considerations for HR Professionals and employers for providing a more inclusive and welcoming workplaces for LGBTQ+ employees:

Provide Access to Gender-Affirming Restroom and Changing Facilities.  Employers should provide transitioning or transitioned employees with the same level of restroom or changing facility access as any cis-gendered employee.  Even the provision of a gender-neutral restroom could be considered sex discrimination, where cis-gendered employees are allowed to use gendered restrooms.  As the Fourth Circuit in Grimm and the Eleventh Circuit in Adams made clear, requiring a transgender student to use the restroom of the gender assigned at birth is sex discrimination.

Recognize Employee Name Changes.  Personnel and work-related documents should always be maintained under an employee’s legal name.  If an employee undergoes a legal name change, employers should ensure that change is recognized, not only in documentation but by the employee’s supervisors and managers.  The Fourth Circuit made clear in Grimm that the refusal to recognize the plaintiff’s legal name change was sex discrimination.

Encourage All Employees to Designate Their Preferred Pronouns in an Easily Accessible Way.  An easy way to do this is to encourage inclusion of preferred pronouns in all employees’ company email addresses and correspondence.  Employers should at all times respect (and foster an atmosphere in which coworkers respect) the use of preferred pronouns designated by employees.  This small gesture, if implemented correctly, works toward normalizing the idea that someone’s gender may be non-binary and/or not align with the gender assigned at birth.  It is important to encourage all employees to participate.  If only transgender and non-binary employees use preferred pronouns, they may still feel they are treated differently, no matter how well-intentioned the policy.

Embrace the Full Gender Spectrum.  Employers should allow for non-binary gender options in company paperwork and handbooks.  It can be easy for LGBTQ+ employees to feel isolated or unseen when employer-provided paperwork and forms include only “Male” or “Female” as gender options.  A non-binary individual is anyone who does not identify in terms of male or female and could include transgender, gender fluid, between gender, or third gender individuals.  Simply adding a third “Non-Binary” option is an easy and effective way to make the workplace more inclusive for all.  Another small, but effective gesture is to make company human resources documents, handbooks, and external materials gender neutral.  Notably, Merriam-Webster officially recognized the singular “they” in 2019.

Enforce Consistent Appearance Standards.  Permit and encourage your employees to dress and groom consistent with their gender identity or in accordance with their preferred gender expression.  This applies equally to transgender and cis-gender employees, as some cis-gender employees may prefer to dress and groom in gender non-conforming ways (i.e, men with long hair; women in masculine attire).  This does not mean employers cannot enforce appearance standards.  Transitioning or gender non-conforming employees may still be required to comply with the same standards of dress and appearance that apply to other similarly-situated employees.