Employers, schools, and real estate developers should take note of a new Executive Order issued on Inauguration Day which gives an expansive reading to last summer’s Supreme Court decision in Bostock v. Clayton County. In Bostock, conservative Justice Neil Gorsuch writing for a 6:3 majority held that Title VII’s prohibition on employment discrimination “because of . . . sex” covers discrimination on the basis of gender identity and sexual orientation.
Broad Definition, Broad Application
Executive Order 13988 extends the reasoning in Bostock to other landmark federal anti-discrimination laws including Title IX, which prohibits sex discrimination in schools and colleges, the Fair Housing Act, and the Immigration and Nationality Act.
The Executive Order further highlights this administration’s effort to combat overlapping forms of discrimination against transgender Americans, in particular race and disability. For example, transgender Black Americans face unconscionably high levels of workplace discrimination, homelessness, and violence, including fatal violence.
100 Days To Develop Action Plans
All federal agencies are to review all existing orders, regulations, guidance documents, policies, programs, and other “agency actions” promulgated under various anti-discrimination laws to identify any agency actions that are inconsistent with the new policy “as soon as practicable.” Agency heads must consider whether to revise, suspend, or rescind inconsistent agency actions and must promulgated new agency actions as necessary to fully implement statutes that prohibit sex discrimination and the articulated policy that:
- Every person should be treated with respect and dignity and should be able to live without fear, no matter who they are or whom they love.
- Children should be able to learn without worrying about whether they will be denied access to the restroom, the locker room, or school sports.
- Adults should be able to earn a living and pursue a vocation knowing that they will not be fired, demoted, or mistreated because of whom they go home to or because how they dress does not conform to sex-based stereotypes.
- People should be able to access healthcare and secure a roof over their heads without being subjected to sex discrimination.
- All persons should receive equal treatment under the law, no matter their gender identity or sexual orientation.
Expect the Standards to Shift
While the Executive Order received both swift praise and swift critique, one thing is sure: expect to see more viable claims of sex discrimination from LGBTQ people. For example, our office has already seen claims in which the employer faces significant liability arising from the sex-stereotyping actions of co-workers and managers who do not “accept” an LGBTQ employee’s status.
As claims like these make their way through the local, state and federal civil rights agencies including the EEOC and the Department of Education Office of Civil Rights, the legal standards may become muddier before they become clearer.
Savvy employers will double down on their efforts to support their workplace cultures. Effective anti-harassment policies and regular training are becoming all the more critical to maintaining healthy workplaces and limiting legal risks. Some business clients are being proactive in shifting to gender-neutral language their employee handbooks and other publications.
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