July 30, 2020

This Client Alert highlights several new updates on tolerance and anti-discrimination in health care and in the workplace. The updates come in the form of a groundbreaking decision from the Supreme Court holding that Title VII protects employees from discrimination on the basis of gender identity and sexual orientation, guidance from the U.S. Department of Health and Human Service for preventing discrimination during COVID-19, and a new standard from the National Labor Relations Board for addressing offensive and degrading outbursts in the workplace.

1.         Title VII of the Federal Civil Rights Act of 1964 prohibits discrimination based on gender-identity and sexual orientation. 

There has long been a debate on what is considered discrimination on the basis of sex under Title VII of the Federal Civil Rights Act of 1964 (“Title VII”). Title VII prohibits employment discrimination based on race, color, religion, sex and national origin. Under Title VII, an employer may not discriminate with regard to any term, condition, or privilege of employment. The scope of the term “sex,” as to whether it encompasses gender identity and sexual orientation or just biological gender, in particular, was the center of this debate. On June 15, 2020, the US Supreme Court, in Bostock v. Clayton County Georgia, finally resolved this issue. In a 6-3 decision, the Court held that the term “sex” is broad enough to include gender identity and sexual orientation and that failing or refusing to hire, discharging, or otherwise discriminating against a person in terms of their employment because they are homosexual or transgender is illegal discrimination based on sex under Title VII. The Court explained their holding by focusing on intent: “Just as sex is necessarily a but-for cause when an employer discriminates against homosexual or transgender employees, an employer who discriminates on these grounds inescapably intends to rely on sex in its decision making.”

The full decision of the Supreme Court is available here.

2.         Health and Human Services issues guidance for ensuring Title VI compliance during COVID-19.  

The Office for Civil Rights (“OCR”) at the U.S. Department of Health and Human Services (“HHS”) has issued guidance to ensure that recipients of federal financial assistance understand that they must comply with applicable federal civil rights laws and regulations that prohibit discrimination on the basis of race, color, and national origin in HHS-funded programs during COVID-19. Their Bulletin focuses on recipients' compliance with Title VI of the Civil Rights Act of 1964 (“Title VI”). Title VI prohibits discrimination on the basis of race, color, or national origin in any program or activity that receives federal funds or other federal financial assistance. This prohibition applies to intentional discrimination as well as to procedures, criteria or methods of administration that appear neutral but have a discriminatory effect.

To help ensure Title VI compliance during the COVID-19 public health emergency, recipients of federal financial assistance, including state and local agencies, hospitals, and other health care providers, are advised to do the following:

• Adopt policies to prevent and address harassment or other unlawful discrimination on the basis of race, color, or national origin.
• Ensure that Community-Based Testing Sites and Alternate Care Sites are accessible to racial and ethnic minority populations, when site selection is determined by a recipient of federal financial assistance from HHS.
• Confirm that existing policies and procedures with respect to COVID-19 related services (including testing) do not exclude or otherwise deny access to persons on the basis of race, color, or national origin.
• Ensure that individuals from racial and ethnic minority groups are not subjected to excessive wait times, rejected for hospital admissions, or denied access to intensive care units compared to similarly situated non-minority individuals.
• Provide, if part of the program or services offered by the recipient, ambulance service, non-emergency medical transportation, and home health services to all neighborhoods within the recipient's service area, without regard to race, color, or national origin.
• Appoint or select individuals to participate as members of a planning or advisory body which is an integral part of the recipient's program, without exclusions on the basis of race, color, or national origin.
• Assign staff, including physicians, nurses, and volunteer caregivers, without regard to race, color, or national origin. Recipients should not honor a patient's request for a same-race physician, nurse, or volunteer caregiver.
• Assign beds and rooms, without regard to race, color, or national origin.
• Make available to patients, beneficiaries, and customers information on how the recipient does not discriminate on the basis of race, color, or national origin in accordance with applicable laws and regulations.

This should serve as a reminder for health care providers of their Title VI responsibilities in light of COVID-19, rather than the establishment of new anti-discrimination standards. Additional information on this guidance is available here.

3. New NLRB standard offers employers greater ability to discipline employees for offensive remarks.

In the decision, General Motors LLC, the National Labor Relations Board (“NLRB”) modified the standard for determining whether employees have been lawfully disciplined or discharged after making abusive or offensive statements. Such “offensive remarks” include profane, racist, and sexually unacceptable statements in the course of activity otherwise protected under the National Labor Relations Act (“NLRA”). The NLRA protects the rights of employees to form unions and engage in “protected concerted activity.” Examples of protected employee activity includes picketing, discussions with managers and coworkers concerning working conditions and related social media posts. The more lenient standard used before General Motors was intended to permit employees some latitude for behavior and langue used in the heat of contentious situations during these protected activates. However, the results of this standard were often out of touch with antidiscrimination laws.

Following this decision, cases involving offensive or abusive conduct in the course of otherwise-protected activity will now be decided under the familiar Wright Line standard. Under Wright Line:

1.  First, the General Counsel of the NLRB must prove that the employee’s protected activity was a motivating factor in the discipline.
2.  Then, the employer must show that it would have taken the same action even in the absence of the protected activity, for example, by showing consistent discipline of other employees who engaged in similar abusive or offensive conduct.

This standard replaces a variety of setting-specific standards. For example, Atlantic Steel previously governed encounters with management and a “totality of the circumstances” test was used for exchanges between employees and postings on social media. While these tests were based on the view that employees should be permitted some leeway for impulsive behavior when engaging in activities protected under the NLRA, they often resulted in reinstatement of employees discharged for deeply offensive conduct. These decisions were out of step with most workplace norms and were difficult to reconcile with anti-discrimination law. The standard announced by the NLRB in this case provides some degree of clarity and allows employers to discipline employees for offensive conduct, even if it occurs in the context of a protected activity.

Read the full decision here.

PLEASE BE ADVISED: This Insight is intended only to provide an overview of the matters addressed herein and does not constitute legal advice.  If you have questions regarding a specific issue or matter, please seek appropriate legal counsel.