Throughout US President Joe Biden’s first year in office, the Biden administration reversed numerous Trump-era policies, including those concerning the US Equal Employment Opportunity Commission, federal contractors, wage data and LGBTQ bias. In this Law360 article, McDermott Partner Rachel Cowen offers insight into how the friction between religious and LGBTQ rights will continue to play out throughout employment law.
“Because of Bostock” – Court Delays HHS Rule Re-interpreting Section 1557 Discrimination “Because of Sex”
One day before an updated rule of the US Department of Health and Human Services regarding Section 1557 of the Patient Protection and Affordable Care Act took effect, the US District Court for the Eastern District of New York ordered a stay and issued a preliminary injunction precluding the most recent final rules from becoming operative. Entities subject to Section 1557 should — at least until decisions are issued in cases pending in US district courts — be cautious in their approach to their non-discrimination compliance obligations.
The US Supreme Court ruled June 15 in Bostock v. Clayton County, Ga. that the prohibition against sex discrimination in the workplace under Title VII of the Civil Rights Act covers sexual orientation and gender identity. Title VII applies to employers with 15 or more employees, including part-time and temporary workers.
Following the decision, benefits experts advise that employers review their benefits programs to ensure that lesbian, gay, bisexual, transgender and queer (LGBTQ) employees are treated equally. Employers can use a checklist to find and correct discriminatory language and practices, and thereby reduce the likelihood of being sued under Title VII or other statutes that provide employees with sexual-orientation and gender-identity protections.
On June 12, 2020, the Office for Civil Rights (OCR) of the US Department of Health and Human Services (HHS) finalized a rule under Section 1557 of the Patient Protection and Affordable Care Act (the 2020 Final Rule) that rescinds certain protections afforded to LGBTQ individuals and persons with limited English proficiency. At the same time, the 2020 Final Rule removes burdensome disclosure requirements that may be a welcome relief for entities covered by Section 1557. On June 15, 2020, the Supreme Court of the United States ruled that workplace discrimination based on gender identity and sexual orientation is forbidden under Title VII of the Civil Rights Act of 1964. Although Title VII is not included in the precedential civil rights laws that gave rise to Section 1557, we nevertheless anticipate that the Supreme Court’s holding will lead to legal challenges in a number of areas, including healthcare and health insurance, religious exemptions and the 2020 Final Rule from HHS OCR.
On Monday, June 15, 2020, the US Supreme Court held in Bostock v. Clayton County that Title VII of the Civil Rights Act of 1964 protects transgender, gay and lesbian employees (and prospective employees) from workplace discrimination based on sex. This means that the protective authority of Title VII for LGBTQ individuals generally extends to employer-sponsored healthcare benefits.
This year, the US Supreme Court will get a chance to say whether federal civil rights law protects gay and transgender employees from discrimination, and California courts will grapple with recent changes making it harder for Golden State businesses to label workers as independent contractors. McDermott’s Michael Sheehan looked at these and other cases to watch in 2020 in a recent article for Law360.
Originally published by Law360, January 2020
Creating a gender identity and/or expression inclusive workplace allows employers to attract and retain talented employees, boosts engagement and productivity, and mitigates risks of legal claims. In a presentation at the 37th Annual ISCEBS Employee Benefit Symposium, Todd Solomon creates a business case for transgender inclusion by exploring legal trends. He discusses best practices for workplace policies, such as introducing transgender employee benefits. Todd also provides practical steps for cultivating an inclusive work culture.