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For years, many LGBTQ+ individuals confronted a dilemma in the workplace, especially those who worked in historically heterosexual male-dominated environments: express the individual’s true self to co-workers and risk harassment, ridicule and—in some cases—even job loss, or conceal certain aspects of the individual’s personal life and essence in an effort to enjoy a safe working environment and remain employed. At the root of this dilemma was the lack of judicial clarity with respect to whether Title VII of the Civil Rights Act of 1964 (Title VII), the federal employment law that prohibits sex discrimination in the workplace, extended protection to LGBTQ+ employees. Finally, employers and employees have an answer to this question.

On June 15, 2020, the Supreme Court of the United States (the Court) issued a landmark decision in Bostock v. Clayton County, Georgia (Bostock), holding that Title VII protects lesbian, gay, bisexual and transgender workers. The Court held that employers that discriminate against employees based on sexual orientation or gender identity unlawfully intend to rely on sex in their decision-making and, ultimately, an employer who fires an individual because they are gay or transgender violates the law. Specifically, the Court stated, “an employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”

Fortunately, many employers previously decided this issue for themselves, crafting equal employment opportunity and harassment policies prohibiting the discrimination and harassment of employees based on gender identity or sexual orientation. For such proactive employers, not much may change. But, moving forward, all employers will need to ensure that their equal employment opportunity policies, practices and trainings reflect this new Court holding.

What does this mean for employers in the construction industry?

In many cases, male energy and male stereotypes dominate, or at least have a strong presence in, the industry and construction employers must look further than just their written policies and must examine the inner-workings of their cultures to ensure compliance with Title VII. As of January 2020, women comprised just 10.3% of the construction workforce, with only about 1.25% of the total female workforce working in the construction industry. In a 2017 U.K. study, a similar workforce to the United States, 59% of survey respondents indicated they overhead the term “gay” used as an insult in the construction workplace.

Employers must start to ask themselves: are supervisors and managers upholding—or worse, promoting—a culture that tolerates harassment and discrimination of members of the LGBTQ+ community or are employees free to express their sexual orientation and gender identities in the workplace without fear of reprisal? In the construction industry in particular, employers should consider practical actions that can be taken to train employees that they will not tolerate any form of sex-based harassment or discrimination in the workplace—including gay slurs, “joking” based on sexual orientation or gender identity, work assignment decisions or similar actions. Employers should take action to create a robust culture of open dialogue and encourage the reporting of potentially problematic behaviors.

An inclusive environment not only will make employees feel more welcome to express themselves, but also has been seen to increase profitability among companies. Specifically, a 2018 McKinsey & Co. report, “Delivery Through Diversity,” showed that companies in the top 25% for ethnic/cultural diversity (including LGBTQ+ individuals) on executive teams were 33% more likely to be leading their industries in profitability. The report indicated that “the inclusion of highly diverse individuals … can be a key differentiator among companies.”

With such a momentous Court decision, especially during Pride month, employers may find that employees are motivated to be more forthcoming with their gender identities and sexual orientations in the workplace. Employers should welcome these employees, and make it clear to the workforce that any harassment or discrimination of such employees based on their sexual orientation or gender identity is prohibited. While workplace cultures may not change overnight, there are steps employers can take to work toward a more inclusive, legally compliant environment. First, employers should conduct trainings on diversity, discrimination, and harassment in the workplace and foster an environment where employees feel comfortable to ask questions, whether publicly or privately. In addition, employers should consider the creation of a diversity and inclusion task force or committee, with input from members of the LGBTQ+ community. Finally, high-ranking officials can set an example for subordinates. By creating an environment free of harassment at the top that trickles down, a workplace that is accepting of the LGBTQ+ community may become more of a reality, thus minimizing risk of Title VII violations.


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