The EEOC has recently focused more of its enforcement efforts on sexual orientation discrimination in the workplace. It’s efforts in this regard recently paid off in EEOC v. Scott Medical Health Center, P.C.
In Scott Medical Health Center, P.C., the court held that sexual orientation is a form of sex discrimination prohibited by the same gender discrimination prohibitions set forth in Title VII of the Civil Rights Act. What this means for employers is that more of these cases are likely to be filed by the EEOC and individual plaintiffs. And with the U.S. Supreme Court about to hear the case of a Colorado baker who refused to bake a wedding cake for a gay couple, the issue of sexual orientation will be in the forefront in the national media moving into 2018.
In Illinois, there have long been protections against discrimination based upon sexual orientation, and this may lull Illinois employers into thinking that since prohibitions on this type of discrimination are not new in Illinois, they won’t see an uptick in activity. However, there have also long been federal and state protections banning sexual harassment, but when high profile cases such as the Harvey Weinstein case bring issues to the forefront we see the spike in reporting and claims. There is no reason not to expect to see the same with sexual orientation discrimination cases in the coming year.
So what can Illinois employers do to protect themselves? First, employers should make sure that they have a personnel policy in place which prohibits all forms of discrimination, including but not limited to discrimination based upon sexual orientation. Most employers in Illinois have these types of policies in place. The problem is that they often fail to train their employees and supervisors on the policies. Make no mistake; handing employees your policy manual is not enough.
The second thing employers need to do now is make sure that all employees and supervisors know what the employer’s policy prohibits, what the reporting requirements are, what the consequences are for violating the policy, who to report violations to and that retaliation is prohibited. The best way to achieve this goal is to provide all employees and supervisors with comprehensive training that includes examples of prohibited conduct.
In the Scott Medical Health Center case, the employer had a policy, but the employees and supervisors had not received any training. Often, employers worry about the cost and time spent on such training; they shouldn’t. The costs of training are far outweighed by the costs associated with litigation. Training truly is the ounce of prevention that is worth a pound of cure and then some.
Another issue that Scott Medical Health Center brought to the forefront is the need to do prompt and thorough investigations. In the Scott Medical Health Center case, the employer failed to investigate employee complaints. This is one of the most significant mistakes an employer can make. Complaints of discrimination must be investigated. Not doing so is a sure ticket to liability. We recommend that employers review their investigation practices and update them if necessary.
Illinois local government employers are now legally obligated to insure that they have harassment and sexual harassment policies in place by January of 2018. As I said above, most employers have such policies, but existing policies should be audited to insure compliance with the new Illinois law. Since policies need to be reviewed and updated, now is also the perfect time to insure that all employees, supervisors and elected officials are trained on these policies. Taking these actions now will not only protect employers from sexual orientation discrimination claims but all other forms of harassment and discrimination as well.
As always, if you have questions or concerns regarding your policies or training needs, do not hesitate to contact Ancel Glink.
