(Updated from 03/29/2021)
The quick answer is that not much is different.
This is a response to my last video in which I talked about managing LGBTQ employees.
Now, if you’re not familiar with the Bostock case…maybe you missed it, you know, we’ve had a little bit going on around the world for the past year…But last June, the US Supreme Court decided a case, or three cases consolidated into one. They ultimately decided to extend sex discrimination protections to LGBTQ persons.
I’m going to give you my disclaimer again that although I’m a lawyer, I am not giving you legal advice in this particular video. But I am going to give you three things that you might want to take a look at with your employment attorney, regarding compliance in your small business.
- The first thing you want to look at is your dress code. That was Amy Stephens’ issue. She was one of the plaintiffs that ended up in the Bostock case. Amy had been identifying as a man and chose to go on vacation. She told her employer, when she came back, she was going to identify as a woman. The employer basically said, “Men don’t wear dresses here.” I’m paraphrasing a little bit, but that’s effectively what was said. And obviously, you can’t restrict men from wearing dresses, if you allow women from to wear dresses. Right? There’s no way to avoid that being a decision based on sex. So you want to look at your dress code for things like that.
- Second, you want to look for any kind of disciplinary language where you “use conduct unbecoming of an employee”. That was Gerald Bostock’s portion of the case. He had joined a softball league that was primarily for LGBTQ players, and his employer found out about it. They decided it was not conduct becoming an employee for where he worked, and he was fired. Supposedly playing softball generally was okay, but not playing in a softball league for LGBTQ players.
- Then third, you want to look for gender stereotypes in your company culture. This one’s a lot harder to sniff out. It’s the jokes. It’s the teasing and all the little things that occur based on gender and gender norms. That was part of what played out and Donald Zardos’ portion of the case. It was the machismo culture of the skydiving business where he worked that that was brought under scrutiny after he disclosed that he was gay.
Again, ultimately, the Supreme Court said sex discrimination protections are extended to LGBTQ employees. So if you’re confused about this, I do have an online course that will help you navigate this better. You can also reach out for a private discussion of your individual situation.
In the meantime, keep listening with your third ear for the hurts you can heal—and please don’t add to them.