Attorneys Discuss New Developments in Discrimination Law

Employers should make changes to address Bostock decision and ‘gender sidelining’

Sherman & Howard on Sept. 17 hosted a talk, “New Developments in Discrimination Law,” as part of its L&E Live series, a five-week virtual education program on labor and employment law.  

The webinar covered the U.S. Supreme Court’s landmark decision in Bostock v. Clayton County, which held that Title VII prohibits discrimination against LGBTQ workers, and “gender sidelining,” a new legal theory about subtle forms of unequal treatment that aren’t actionable under anti-discrimination law but create barriers for women’s advancement.

Amy Knapp, an associate in Sherman & Howard’s Denver office, spoke about the Bostock decision handed down in June. As most employers are probably aware, the Supreme Court’s historic decision means employment discrimination based on sexual orientation or transgender status is prohibited under Title VII. 

In addition to explaining the majority opinion, authored by Justice Neil Gorsuch, and the dissents by Justices Samuel Alito and Brett Kavanaugh, Knapp talked about the practical implications for employers when it comes to avoiding and defending themselves against discrimination claims.

One of the legal effects of the Bostock decision, Knapp said, is that employers cannot avoid liability just by pointing to some other factor that contributed to the termination decision or other adverse action. “The court took pains to emphasize that but-for causation does not mean sole causation,” she said, adding that as long as one of the factors in the decision was a but-for factor based on sex, that’s all it takes to violate Title VII.

The Bostock decision also weakens “group treatment” defenses, where an employer might argue an adverse action wasn’t sex-based because, for example, it promotes women more often than men, on average. “That evidence won’t be as persuasive anymore because of the way that the decision was written and the emphasis on that individual as opposed to the group,” Knapp said.

“You may be wondering, if I live in a state that already prohibits sexual orientation and gender identity discrimination, like in Colorado, what really does this decision do that the state statute hasn’t already done?” she said. 

The decision is still important in part because it is expected to lead to an increase in federal litigation arguing LGBTQ discrimination, Knapp said, adding that “it’s really about how the court came to the decision that may have ripple effects that are wider-reaching than might first meet the eye.”

Knapp said it’s a good time for all employers to revisit their policies, practices and benefit offerings to ensure compliance with the decision, starting with the hiring process. The Equal Employment Opportunity Commission has released guidance saying that “intentional and persistent” refusal to use an employee’s chosen name and pronouns could form the basis of a hostile work environment claim, she said, so it’s important to start off on the right foot during the application process. Knapp said small steps like adding a “non-binary” checkbox for gender or a space to indicate preferred pronouns on application forms can help create an inclusive environment.

Title VII’s protective authority generally extends to employer-sponsored health care benefits, Knapp said, with the Supreme Court holding that Title VII requires equally comprehensive coverage for employees regardless of sex, so employers will want to review their benefit offerings to make sure LGBTQ employees are not being treated differently. 

During the last half of the presentation, Arizona-based Sherman & Howard associate Lindsay Hesketh talked about “gender sidelining,” also known as opportunity discrimination. According to Hesketh, gender sidelining is a novel legal theory about how small actions toward members of one gender that lead to different treatment can, over time, disadvantage that group. It can apply to men and women, she added, and could possibly be extended to other protected classes.

Examples of these small actions or “microaggressions” include not giving full credit to a female employee when it’s due, inviting men to work-related golf outings while excluding women and overlooking a woman for a project that requires late nights because she’s a mother. While these acts probably wouldn’t be considered abusive, intimidating or even hostile under existing case law, Hesketh said, times and attitudes are changing. 

“Is a reasonable person — the same reasonable person who existed in 1990, or 2000 or even 2015 — is that the same reasonable person who’s in court in front of a judge today?” she said, referring to the reasonable person standard for harassment. 

Hesketh pointed to a decision this year out of a federal district court in California in which a Black employee alleged a hostile work environment based on things like negative performance reviews, being marked absent despite being present for work and being denied volunteer opportunities that fell within his area of expertise. Unlike similar cases that had been dismissed in courts around the country, the California court allowed the case, Pringle v. Wheeler, to move forward.

“While macroaggressions undoubtedly constitute a hostile work environment, pervasive microaggressions have the ability to diminish the workplace significantly as well,” said the U.S. District Court for the Northern District of California in August in its order denying the employer’s motion to dismiss.

To avoid gender sidelining, Hesketh recommended employers continually review policies and procedures to ensure they’re fair and being applied evenly. 

She also suggested employers hold trainings on concepts like microaggressions, including behaviors that might have been dismissed before but that courts might start recognizing as contributing to a hostile work environment when looked at over time. 

—Jessica Folker

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