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Federal Employment Protections for LGBTQ Employees

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The Supreme Court recently expanded employment protections and rights for LGBTQ employees across the United States. Both employees and employers should understand these important changes in the law and speak with an attorney about any concerns. 

Title VII of the Civil Rights Act of 1964 prohibits employment discrimination based on several protected factors, yet the law does not expressly include sexual orientation or gender identity and expression as protected factors. A number of states went a step further than federal law and enacted statutes that specifically protected employees based on sexual orientation, gender identity, and gender expression. Oklahoma, however, was not one of those states.

The Oklahoma Anti-Discrimination Act protects employees based on race, color, religion, sex, national origin, age, genetic information, and disability. This meant that employers in the state could openly and freely refuse to hire, terminate, or allow harassment against employees who were transgender or not heterosexual. Many employees suffered adverse employment actions that would have been unlawful in certain other states as a result.

On June 15, 2020, this situation drastically changed. The Supreme Court of the United States (SCOTUS) issued a landmark ruling that provided protections for LGBTQ employees across the country. Now, under the ruling, Title VII effectively prohibits discrimination based on sexual orientation and gender identity or expression in workplaces in every state, regardless of state law.

The SCOTUS Decision

The case heard by the court was Bostock v. Clayton County, Georgia, which involved a county employee who was fired when the county office learned he was playing in a gay recreational softball league. Joined with that case were two additional federal cases, involving a skydiving instructor who was terminated when he told a customer he was gay, and a transgender employee of a funeral home who began presenting as a woman instead of a man.

The issue before the court was whether Title VII protections based on sex and gender inherently included sexual orientation and gender identity. In a 6-3 decision, SCOTUS ruled that they did. The decision reasoned that you could act based on sexual orientation and gender identity without also acting based on sex and gender. Even if it was not what the lawmakers might have foreseen the law to cover, the plain language of the law should be interpreted to protect LGBTQ employees.

What this Means

It is critical for both employees and employers to recognize what the SCOTUS decision means moving forward. Employees should understand their new rights under the law, which is to be free from discrimination at work based on their actual or perceived LGBTQ status. You should know the many types of discrimination that might occur, including:

  1. Refusal to hire applicants because of suspected LGBTQ status
  2. Inquiring about LGBTQ status in interviews or on applications
  3. Failing to promote an LGBTQ employee over a less-qualified candidate
  4. Not allowing LGBTQ employees to work in consumer-facing positions
  5. Giving LGBTQ employees less desirable shifts or assignments
  6. Refusing to increase an employee’s pay because they are LGBTQ
  7. Terminating an employee for LGBTQ status
  8. Allowing harassment regarding sexual orientation or gender identity
  9. Retaliating against employees for complaining of potential harassment or discrimination

Employees who experience any of the above now have important rights under federal law, and they can report the matter to the EEOC with the help of an employment lawyer.

On the other hand, employers should take action to fully update all policies to reflect the new protections under Title VII. If needed, employees and supervisors should be trained in the prevention of discrimination, harassment, and retaliation. This can help to ensure that unlawful discrimination does not take place in your work environment.

Speak with a Tulsa Employment Law Attorney about Your Concerns

At Wandres Law, PC, we help both employers and employees navigate the complex land of federal and state employment regulations. As employment rights and laws change, we are here to help clients adapt and ensure that laws are being followed. As an employee, if you feel your rights have been violated under Title VII or Oklahoma anti-discrimination laws, we can help you take legal action and seek the relief you deserve. As an employer, if you are facing complaints of discrimination, we can help you resolve the matter as efficiently as possible and avoid unnecessary legal action or liability.

If you have an employment law concern or question, please do not hesitate to call (918) 641-4044 or contact us online for a free consultation with a Tulsa employment law firm today.

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Employee Rights as They Go Back to Work

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As businesses in Tulsa keep reopening after the COVID-19 shutdown, there will certainly be a “new normal” for everyone involved. Both employers and employees will need to follow new strict protocols. While many people are happy to be earning a paycheck after a hiatus, they also might be fearful of a second wave and exposing themselves and their loved ones. This is a delicate situation, and it is important to keep employee rights in mind. If you are an employer and need guidance or you are an employee, and you believe your rights have been violated, contact a Tulsa employment law attorney for help right away. 

Asking About Symptoms or Illness

Generally speaking, the Americans with Disabilities (ADA) prevents employers from asking about medical conditions or disabilities that do not directly pertain to an employee’s job duties. However, when it comes to possible symptoms of COVID-19, the Equal Employment Opportunity Commission (EEOC) provides guidancethat employers are permitted to ask employees if they are sick or might be exhibiting symptoms. However, all information must be handled confidentially. 

What if an Employee is High Risk?

If you have a medical condition that puts you at high risk for coronavirus, you might qualify for a reasonable accommodation from your employer. However, an employee must request an accommodation, as unless the need for accomodation is readily apparent without notice, companies are not obligated to offer accommodations without a request. An employer might also require medical documentation to prove your need for an accommodation. 

Anti-Discrimination and Harassment

All employee rights to be free from unlawful discrimination and harassment at work remain firmly in place. There are different types of discrimination or harassment that might be more likely in light of the pandemic, including based on a person’s race, ethnicity, or age. Harassment or discrimination due to disabilities and medical conditions might also arise. Employers should take steps to train employees and make it clear that this type of conduct is unacceptable.

Retaliation

There are many reasons why an employer may retaliate against an employee, and retaliation can take many forms. If an employee exercises a lawful right, the employer is prohibited from taking any type of adverse employment action against that employee as a result. Adverse employment actions that might constitute retaliation include:

  • Demotion
  • Reduction of hours
  • Pay decrease
  • Denial of a pay increase or promotion
  • Undesirable transfer or assignment
  • Harassment
  • Termination

The underlying reason for the retaliation can also vary, and some reasons might be more common as businesses open up again. Some reasons for unlawful retaliation might include:

  • Using sick time
  • Using paid time off
  • Using family and medical leave
  • Complaining of harassment at work
  • Complaining of unlawful discrimination
  • Reporting an employer’s failure to follow health restrictions and guidelines
  • Complaining of wage issues

Employers should be careful to never retaliate against employees for exercising a right.

Wage and Hour Claims

Many businesses struggled if they had to temporarily shut down, and the financial issues might not resolve right away. Some employers might be tempted to cut corners by not paying employees their full wages at first, or failing issue paychecks when necessary. Even if a company is having budget problems, it still needs to ensure that employers are properly paid for all hours worked as required by Oklahoma law. 

Health and Safety at Work

Many businesses are opening with strict health guidelines to protect both employees and customers. However, we all know that not everyone in the Tulsa area is taking precautions seriously. While a good portion of the work environments may not require the strictest guidelines and requirements, there are a number of work environments that should, depending on the density of their employee arrangement and nature of their business.. In those situations, some employers might not enforce requirements for masks, gloves, or social distancing, which puts employees at unnecessary risk of exposure. 

In Oklahoma, employees have the right to a healthy and safe workplace, and they should not be expected to work in unreasonably risky conditions or conditions that do not comply with safety standards. Employees can raise concerns and refuse to work in unsafe conditions if an employer does not address the problem.

Consult with a Tulsa Employment Law Attorney Today

If you are an employer or an employee and have any questions or concerns about employee rights as businesses reopen, contact a Tulsa employment lawyer at Wandres Law, PC. Call <(918) 641-4044 or contact us online to set up your consultation and learn how we can help in your situation. 

 

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