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U.S. Supreme Court Extends Federal Protections for LGBTQ Employees. What does it Mean for Illinois Employers?

By Karuna S. Brunk

On June 15, 2020, the U.S. Supreme Court released its decision in Bostock v. Clayton County, Georgia, holding that Title VII of the Civil Rights Act of 1964 (“Title VII”) protects gay, lesbian, and transgender employees from discrimination based on their sexual orientation and gender identity.  The majority opinion was authored by Justice Neil M. Gorsuch and held that an employer violates Title VII when it discriminates against an employee on the basis of the employee’s sexual orientation or gender identity – “[a]n employer who fired 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.”

The Illinois Human Rights Act has explicitly prohibited employment discrimination and harassment on the basis of sexual orientation and gender identity for several years.  What should employers do to avoid lawsuits and to make the workplace more fair and welcoming to all employees?

1.   Establish clear policies that prohibit discrimination. Update employee handbooks and equal employment opportunity policies to specifically state that discrimination based on sexual orientation and gender identity is prohibited in the workplace. Consider revising policies to be more gender neutral – for example, dress code policies should not require women to wear skirts and men to wear pants.

2.   Provide sexual harassment prevention training. Effective January 1, 2020, every employer in the State of Illinois must provide annual sexual harassment prevention training to all employees. This training should encompass discussions of harassment based on sexual orientation or gender identity.

3.   Communicate with employees. Be open to conversations with employees regarding how they want to be addressed or recognized by their colleagues and supervisors. We suggest that you document these conversations.

4.   Workplace investigations and remedial measures. As part of your anti-discrimination and anti-harassment policies, be ready to thoroughly investigate and address all claims of harassment or discrimination based on sexual orientation or gender identity.

As always, we recommend that you contact a qualified employment attorney as you update your policies and respond to employee relations issues.  Additionally, our firm provides comprehensive sexual harassment training to businesses of all sizes to bring them into compliance with Illinois law.

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