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What to celebrate about the Supreme Court's big ruling on LGBTQ discrimination — and the unresolved office problems that continue to hurt queer and trans workers

Weng Cheong and Allana Akhtar 6/19/2020

L.G.B.T. activists and their supporters rally in support of transgender people on the steps of New York City Hall, October 24, 2018 in New York City. Drew Angerer/Getty Images

The US Supreme Court ruled in a 6-3 decision on June 15 that Title VII of the 1963 Civil Rights Act applies to LGBTQ individuals. 

But more work may still need to be done to make workplaces inclusive for LGBTQ employees. 

Business Insider spoke to labor attorneys and HR experts and reviewed research to find out how the Supreme Court decision will impact the office. 

Company leaders must rework their anti-harassment policies, expand benefit plans that cater to LGBTQ needs, and educate workers on the impact of microaggressions.

When Sophie Debs heard this week's Supreme Court ruling on LGBTQ discrimination at work, she felt conflicted.

Debs is an incoming employee at the tech company Lob, where she worked as an intern in March 2019. She's also a transgender woman. Debs isn't afraid of getting fired from her job or being discriminated against because of her gender identity, but she does have friends who have lost their jobs because they were transgender.

"I have two friends who have been fired from jobs for being trans," she said. "They came out and were fired a day later. While it does make me feel better — and I'm glad that employers know it's illegal — I don't think it provides a lot of safety for people."

On June 15, the US Supreme Court ruled in a 6-3 decision that Title VII of the 1963 Civil Rights Act applies to LGBTQ individuals. Title VII protects employees from facing discrimination from their employer on the basis of their race, color, religion, sex, and national origin.

"An 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," Trump-appointed Justice Neil Gorsuch wrote in the decision.

The landmark decision is a blow to the Trump administration, which has rolled back or rescinded at least 31 measures put in place by the Obama administration to protect Americans from discrimination, according to a 2019 ProPublica analysis.

While the decision is a step in the right direction, companies still need to be vigilant to ensure they are providing an inclusive environment for LGBTQ workers, experts told Business Insider.

For example, the law does not address bathrooms for transgender people, and it's still unclear if employers can fire an LGBTQ person for religious reasons, the Associated Press reported.

The "decision was a watershed," Kasey Suffredini, CEO of Freedom for All Americans, told The Associated Press. "But at the same time it's so basic and entry level. Now we actually get into the details into how that discrimination plays out in everyday lives."

Business Insider spoke with labor attorneys and HR experts, and reviewed research to better understand how this decision will impact the day-to-day lives of employees across the US, and what employers can do to make their offices more inclusive.
Employers should complete a comprehensive review of all policies to ensure they are not discriminatory

The first step all employers should take is to review their HR policies and handbooks to ensure compliance with the Supreme Court's decision, said Jon Nadler, a labor attorney at Eckert Seamans.

The Supreme Court decision protects job applicants and existing employees, and it covers hiring, firing, and similar actions by an employer, he said. Employers could potentially face retaliation claims and discrimination lawsuits if their anti-harassment and discrimination's policies don't include protection for LGBTQ employees, he added.

Nadler recommended that companies first read through their Equal Employment Opportunity policy (EEO), which refers to unbiased and non-discriminatory treatment of employees based on their race, ethnicity, religion, age, medical history, sex, sexual orientation, and gender identity.

"If you want to ensure compliance, the starting point and the bare minimum is to make sure that the terms 'sexual orientation' and 'gender identity' are now included as the protected classes in those anti-harassment policies," he said.

Employers should also look through their benefits policies, especially the ones regarding parental leave and anything that has a reference to someone's sex, the attorney added.

Hiring managers need to be well-informed of the Supreme Court's decision and how that will impact recruitment processes, Nadler said. Recruiters shouldn't ask candidates about their gender identity or sexual orientation during hiring and promoting because it is not relevant to hiring decisions — just like it is prohibited to judge candidates based on their race or marital status.

Train employees to recognize discrimination at work

One in two LGBTQ employees in a survey of 515 by job site Glassdoor said they have experienced or witnessed discrimination in the office.

Managers should be well informed on how to handle discrimination, Nadler said. They should also be well-versed in the prejudice LGBTQ employees face.

Transgender employees, for example, may be misgendered. During Debs' first few weeks interning at Lob, she proposed that the company let employees use self-identified pronouns.

"I was misgendered occasionally," she said. "I wanted to educate people at the company on why this is important, and how we can respect people by letting them choose their own pronouns."

Misgendering means using the wrong pronouns to refer to someone's gender, and it's more prevalent for trans and nonbinary workers.

For example, if someone comes out as nonbinary and uses "they" and "them" pronouns, it is incorrect to use the pronouns "she" or "he."

It took Lob a month to roll out this plan. Within that time, the company put a personal pronoun field in job applications, encouraged employees to note their he, she, or gender-neutral pronouns in email signatures and other communication platforms, and reached out to stakeholders about this plan. 

Offer employee benefits specific to LGBTQ health needs

Part of making workplaces inclusive to LGBTQ people is offering paid benefits many of them may need.

Healthcare benefits are another key element employers must assess to make policies that are supportive of LGBTQ workers, who often have difficulty accessing medical care.

Employers should check if their health plans cover gender reassignment surgery and fertility services. They can also offer adoption assistance benefits. Many health plans still exclude "services related to sex change" or "sex reassignment surgery" and coverage typically varies by state, according to US Department of Health and Human Services.

Companies could also consider offering care coordinators and social workers to help LGBTQ employees navigate the health system. For example, startup Included Health works with employers to provide these services to LGBTQ workers.

Even if employers do offer these benefits, they are typically only provided to full-time employees. Companies should consider offering these benefits to their growing contract workforces as well. 

Educate employees on microaggressions

Microaggressions, or the actions and remarks that perpetuate stereotypes towards marginalized groups, is another form of discrimination.

Bringing up your queer uncle every time you're around an LGBTQ colleague, or telling someone you "would have never known you were transgender" may be well-intentioned, but these comments can be hurtful or insensitive.

Listen to and read LGBTQ leaders on what comments are hurtful toward them to educate yourself on how to be a better ally.

If managers, or employees, hear another coworker make an insensitive comment, they should speak out and address it in a calm, helpful manner.

It's also key to provide employees with safe spaces to discuss how they're feeling. Debs stressed that it's crucial for companies to have employee resource groups where everyone can be open and honest about the issues in the workplace.

"A company's managers can read a million different articles about what to do, but they won't be able to build a fully welcoming and supportive environment without actively creating a space that welcomes the input of marginalized people in the office," she said.