The US Supreme Court issued two decisions recently that will affect employers – one pertaining to employment discrimination against LGBT employees and a second upholding legal protections for immigrant “dreamers.”
Title VII Clarified
For many years a legal question existed as to whether Title VII of the Civil Rights Act prohibits employment discrimination against lesbian, gay, bisexual, and transgender (LGBT) employees or applicants.
The Supreme Court ruled that Title VII (the nation’s principal anti-discrimination law) prohibits employment discrimination against LGBT individuals. The Court stated that …“[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. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”
The Court found that it is “impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.” The 6-3 majority held that treating individual employees adversely because of their sexual orientation or gender identity is inherently discriminatory “because of sex.”
At the same time, the Court steered clear of issues such as bathroom access or exemptions based on free exercise of religion, leaving those issues to future litigation.
The decision is unlikely to have a significant impact in Massachusetts, which has long-standing protections in statute for individual rights based on sexual orientation (1990) and gender identity (workplace, 2012; public accommodation, 2016).
Massachusetts employers concerned that their current policy may not explicitly address either of these issues have several options. One is to make sure the anti-discrimination policy in the company handbook covers these two protected classes. The second is to broaden the scope of an existing sexual harassment policy or to adopt a companion anti-discrimination policy covering all forms of discriminatory behavior.
The Supreme Court decision is most likely to have an impact on employers that operate in other jurisdictions that previously did not recognize legal protection for these groups. Massachusetts employers that operate in states that did not have a law on this issue should review their handbook policies for that state and, if necessary, update them accordingly to reflect this decision.
Deferred Action for Childhood Arrivals (DACA)
In an effort to overturn a decision by the Obama administration that provided some legal protections to the approximately 700,000 DACA-eligible individuals – most of whom are now working age – the Supreme Court ruled that the Trump administration acted in an arbitrary and capricious manner in moving to deport the “Dreamers.” The decision means that the Trump administration must go back to square one and begin the process again.
Given that the original Trump Administration proposal was created in September 2017 and subject to immediate legal challenge, it is likely that any subsequent proposal will face the same fate and so the issue may not be resolved for years to come. In the meantime, dreamers who are working in the labor force may continue to remain in the US and remain eligible for employment.
Members with questions about this or any other HR matter may contact the AIM Employer Hotline at 1-800-470-6277.