On June 15, 2020, the Supreme Court of the United States ruled in Bostock v. Clayton County, GA that Title VII protects LGBTQ employees from workplace discrimination. Even in the midst of the pandemic shutdown and the murder of George Floyd, workers and workers’ rights activists took to the (virtual) streets in celebration. Social media was covered in rainbow flags and memes involving unicorns and RBG. Bostock was a desperately-needed ray of sunshine that week.
It still is.
If you’re feeling like the magic is gone, it may be because Title VII rights are tough to assert—for workers in any protected class. Here are some lessons from the trenches:
- Get a lawyer. A workers’ rights attorney can advise whether there’s something legally wrong in the workplace, what options you have for combatting it, and how much it will cost to combat. While it’s possible you have the case of the century, more often an attorney is going to be helping you decide when to fight, when to walk away, and when to run… (cue Kenny Rogers…)
- Document like mad. Is your employer needlessly complicating a name change process? Do your coworkers constantly misgender and dead-name? Is health insurance paying for cancer-related mastectomies but not those for TGNC patients? Are you being asked non-job related health questions? Is someone obsessed with which bathroom you use? Specific, real-time documentation is your talisman. Write down dates, times, locations, witnesses, what happened, what was said, and the effect the incident had on you (e.g., high blood pressure, PTSD, shaky hands all afternoon, felt humiliated, etc.) The more exactly you can remember the wording of any comments, the better. Send this information to yourself on your personal email account (NOT your work account, please). Your attorney will be grateful for this real-time documentation.
- Use the complaint process – with caution. This is where the advice of an attorney is indispensable. Making an internal complaint is sometimes like painting a target on your own back. But if you’re already wearing a target, making a complaint puts the employer on notice that it may be looking at some pretty gritty legal liability. For some employers, that fear will spur them to make some positive changes.
- Use the complaint process – with precision. Get an attorney to review your complaint. (Don’t rely on a verbal complaint. Just don’t.) The words “My boss is acting inappropriately” do not have the same effect as “On September 1, 2020 at 11:45 am, Henry Frick followed me to the restroom and asked whether I was leaving the seat up or not. Joe Hill and Hattie Canty witnessed this incident. I felt sick to my stomach the rest of the afternoon. I consider this to be gender-based harassment.” The words you use will have an enormous effect on the strength of your legal position.
- Don’t let other employees turn you into “Queer Google.” You are there to do a job. Your coworkers’ non-work related curiosity, even if it is well-intentioned, will interfere with your productivity and get you into trouble. It is not your job to educate your cis colleagues. If they are asking invasive or impertinent questions, it’s worth a conversation with your attorney to decide how to handle it in a way that ensures your Title VII rights are protected.
- Don’t quit – unless your attorney, doctor, spouse, or career coach says to. If you quit, you may cut off your ability to recover monetary losses. Courts don’t like speculative damages in the first place, and it’s hard to argue you had any expectation of continued earnings if you were the one who cut off your own earnings by quitting. But if the job is affecting your health, relationships, or career – or if your attorney says you can’t fix the problem—you may need to consider your big picture priorities.
- Don’t rely on lists you read on the internet. Speak with an attorney. You deserve the peace of mind that comes with understanding your new legal rights at work.