What should HR be doing now? 

Given the rapid pace of changing and polarizing political, legislative, and individual viewpoints on LGBT rights, it’s reasonable to conclude that the EEOC has chosen now as the right time to test the courts on whether Title VII includes sexual orientation discrimination. And, if the federal legislature does not pass a law specifically addressing sexual orientation discrimination, it’s equally reasonable to anticipate the Baxley, Boone, or a similar case will reach the U.S. Supreme Court in the near future for a definitive decision on the issue. 

So what should you be doing in the meantime? First, check your company’s equal employment opportunity policy. Many private employers have voluntarily included sexual orientation and gender identity as protected categories within anti-discrimination and harassment policies. If your own policies and procedures prohibit discrimination against LGBT employees, they should be enforced in the same manner as other protected categories. 

Second, keep track of developments in the law so that you know how different states and cities (where your company might operate) approach sexual orientation discrimination. For example, though the Kansas Act Against Discrimination does not include sexual orientation as among the protected categories, two cities, Lawrence and Roeland Park, have passed ordinances prohibiting discrimination on the basis of sexual orientation and gender identity. Moreover, 22 states and the District of Columbia have specifically included sexual orientation within their state anti-discrimination laws; 19 of those states and D.C. include gender identity as well. 

Third, regardless of whether any policy or law specifically prohibits sexual orientation discrimination, it’s clear that the EEOC intends to enforce Title VII in a manner that protects LGBT employees. You should review your anti-harassment training with this in mind and consider whether your workforce needs additional training on sexual orientation and gender identity discrimination.