Update Handbook, Policies to Include Sexual Orientation and Gender Identity

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Question: With the Supreme Court’s ruling on Title VII of the Civil Rights Act of 1964 regarding gender identification, can we leave the Title VII disclaimer in our company handbook and applications as is? Or does the wording need to be adjusted to specifically state “sexual orientation” and “transgender status”?

Answer: On June 15, 2020, the U.S. Supreme Court held in the landmark civil rights case Bostock v. Clayton County that Title VII’s protections extend to the LGBT community. Although Title VII doesn’t specifically address sexual orientation or gender identity (it prohibits employment discrimination based on “race, color, religion, sex, or national origin”), the Court’s decision interprets Title VII’s “on the basis of sex” language to include sexual orientation and transgender status.

The Supreme Court’s decision affects both employers and employees. An employer now discriminates against an employee when it makes an adverse employment decision because the employee is attracted to members of his or her own sex, or because the employee identifies as a sex other than the one she was assigned at birth.

While many states, including Colorado, already prohibit discrimination based on sexual orientation and transgender status, employers subject to Title VII should review and revise their handbooks, policies, and HR materials to ensure nondiscrimination, harassment, and retaliation policies extend to sexual orientation and gender identity. You should also communicate and train supervisors and employees on the updated policies to make sure they understand discrimination against homosexual or transgender individuals is illegal and won’t be tolerated.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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