On Monday of this week, the U.S. Supreme Court issued a ruling that provides clear guidance for employers: Individuals may not be refused employment or fired for being gay or transgender. In light of this decision, it is time for employers, large and small, to review their personnel practices.

What the court said

The court’s ruling decided in favor of three individuals: Two had been fired after their employers found out they were gay and a male who was fired after informing their employer of plans to begin presenting as a female. In each case, the employer acknowledged the firing was because of the individual’s status as gay or transgender.

The Court analyzed at great length the wording of Title VII of the Civil Rights Act of 1964, which prohibits workplace discrimination based on race, color, religion, sex or national origin. Central to the analysis was whether the law provides protection for gay and transgender individuals as a matter of sex.

The employers in the cases argued that “sex” is limited to a biological distinction between male and female. The Court found, however, that being gay has much to do with sex. It presented an example of two employees, each of whom are attracted to men. In all other respects, the employees are materially the same, except that one is male and the other is female. Would the female be fired for her known attraction to men? If the answer is “no,” the discrimination against the male employee is evident.      

Citing decisions in numerous past cases, the Court assessed whether the three individuals were fired “because of” sex. In other words, but for their status as gay or transgender, would they have been retained as employees? 

In the opinion, Justice Neil Gorsuch wrote, “The statute’s message for our cases is equally simple and momentous: An individual’s homosexuality or transgender status is not relevant to employment decisions.”

How the ruling affects employers

This ruling makes it clear that gay, lesbian and transgender individuals are protected under Title VII.  Thus, an employer may not refuse to hire individuals simply because they are gay or transgender. To comply with the law, an employer may not ask about a job applicant’s sexual orientation or take such preference into account in deciding whether to hire.

Title VII also dictates that an employer may not make decisions regarding promotion, performance management and retention based on whether the employee is gay, lesbian or transgender. Of note, the Supreme Court decision emphasizes that an employer cannot escape liability by relying on other non-protected traits when the employee’s sex is also involved in the decision. If sex is part of the consideration in the employment decision, the law has been violated.    

The Court also rejected an argument that an employer’s practices should be considered acceptable when there’s proof that all females employees are treated the same and all male employees are treated the same. The employer is required to consider the individual in avoiding discriminatory practices.

Sound practices make for good hiring

Good hiring starts with a clear understanding of the job position by presenting a well-written job description. An employer should invest time in summarizing the duties and responsibilities of the position along with any required education, training and experience. Then, in complying with Title VII, an employer should focus hiring decisions on an applicant’s skills, work experience and qualification for the job.

Interviews with applicants should center on discussing job requirements and exploring whether the individual can fully meet those requirements. Using a structured interview format will ensure that similar topics are discussed with all candidates, and they are evaluated on the same questions. Evidence of an objective process can prove very helpful if the employer’s hiring practices are later challenged.

In the hiring process, questions about an individual’s private life should be off-limits, particularly when answers are likely to reveal information about age, sexual orientation or other protected aspects. Information about a protected status is sometimes evident, however, as with an obviously pregnant woman. Sometimes applicants offer personal information, such as referring to a same-sex partner. It may be apparent that a candidate is transgender. If personal issues come up in conversation, the interviewer should promptly advise that hiring decisions are based on pre-set criteria and politely inform the candidate that these other factors are not considered.

The selection process should involve rating each candidate against the criteria for the job. The preferred candidate should be the individual who is best suited to fill the employer’s needs in the position. An employer who focuses on the required skills and experience makes a wise hiring decision while taking measured steps to comply with the law.    

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