The Equality Act: Reinforcing Bostock and Dealing with Workplace Harassment
On June 15, 2020, the Supreme Court held that Title VII of the Civil Rights Act prohibits employers from discrimination against individuals on the basis of sexual orientation or being transgender. In Bostock v. Clayton County, the Supreme Court determined that sex-based discrimination includes discrimination due to gender identity and sexual orientation.
Flash forward nearly a year later, in February 2021, the House of Representatives moved to pass the Equality Act, which sought to reinforce the Court’s holding in Bostock by prohibiting discrimination based upon sex, gender identity and sexual orientation. The Equality Act, however, takes the protections a step further than Bostock. While Bostock addressed discrimination in employment, the Equality Act seeks to prohibit discrimination in employment, education, housing, healthcare, credit, and jury service. The proposed legislation also forbids discrimination in public accommodations, which “[provide] a good, service, or program,” including transportation. Additionally, the Equality Act clarifies that the Religious Freedom Restoration Act of 1993 cannot be used to permit discrimination.
Although the Equality Act has not yet moved past the Senate, the Biden Administration has decidedly endorsed it. No matter how this plays out, employers should ensure that their policies and practices comply with Title VII, which the Supreme Court already determined in Bostock, includes discrimination based on sexual identity and gender expression. According to the EEO, the most effective tools for employers to combat and prevent workplace harassment are the combination of leadership and accountability. Among the EEO’s recommendations to employers are ongoing analysis for risk factors, fairly and firmly disciplining offenders (while protecting victims from retaliation for disclosing the offense), and clear anti-harassment policies.