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Don’t Let Your Workplace Become Collateral Damage in the Cultural Wars

The so-called cultural wars have roiled politics since at least the 1990s and now have invaded the workplace.

However you feel about these issues personally, you should know they are going to spawn confusion and litigation in the workplace as employers try to make sense of conflicting mandates in the courts and legislatures. Uncertainty is the enemy of risk management, and unless you want to make an expensive public statement about your beliefs, we advise you to approach these issues with caution – and sound legal counsel – until the smoke clears.

Many date the cultural wars to 1992, when presidential candidate Patrick J. Buchanan delivered what became known as the “cultural war” speech at the Republican national convention, warning that “there is a religious war going on in this country. It is a cultural war, as critical to the kind of nation we shall be as was the Cold War itself, for the war is for the soul of America.”

You don’t have to agree with Buchanan’s politics to recognize that he was right about the nature of the battle. And with talk radio and cable TV’s insatiable appetite for controversy and our never-ending cycle of national campaigning, we don’t expect the cultural wars to abate, even following the election in November.

The workplace has become a battleground

Buchanan wanted to stir up opposition to same-sex marriage, and while his side eventually lost that battle, the war continues on other issues where politics and sexual identity overlap, and the workplace has become the battlefield.

One issue percolating in many state legislatures is what has been termed “religious liberty.” Several states have passed laws that allow businesses to refuse to provide service if doing so would violate their religious beliefs.

The oft-cited example is that of a baker who is asked to sell a wedding cake to a same-sex couple. With the protection of a religious liberty law, the baker can turn down the cake order if it offends his religious beliefs.

Such a law has been proposed in South Carolina, but so far, has stalled.

Opponents say such laws are a thinly disguised license to discriminate in hiring, promotions, housing and most everything addressed in current civil rights laws, and are motivated by a desire to roll back a rising tide of civil rights for LGBT people.

EEOC has taken a stand on LGBT protections

Current federal civil rights laws say nothing about LGBT discrimination, but the courts could change that.

The Equal Employment Opportunity Commission (EEOC) recently jumped into the fray, announcing that it interpreted Title VII of the Civil Rights Act of 1964 as “prohibiting discrimination against employees on the basis of sexual orientation and gender identity.”

The U.S. Department of Justice civil rights division also has begun considering gender identity as a basis for discrimination claims, signaling that the government intends to assert its influence on this rapidly evolving issue. Neither the DOJ nor the EEOC positions have the force of law, but they will force movement of the issues to the courts.

Public restrooms are a flashpoint issue

The latest headline-grabbing issue is whether transgender people should be allowed to use the public restroom of their choice. One side cites the possibility of creepy men muscling their way into women’s locker rooms and ogling young girls. The other side says this concern is way overblown and that anyone who dresses and identifies as a woman (or man) shouldn’t endure the humiliation of using a restroom where they will be out of place.

This has become an emotional flashpoint, and businesses are finding that it has a major public relations component. The giant-retailer Target is now the subject of a boycott after the chain said it would allow transgender people to use the restroom of their choice. Our neighboring state of North Carolina is reaping a whirlwind of negative press and reassessment as a place to locate a business after passing a law that preempts local laws protecting transgender people from discrimination. “Transgender Law Makes North Carolina Pioneer in Bigotry,” was the headline in a March 26 editorial opinion in the New York Times.

The U.S. Department of Justice and the State of North Carolina recently sued each other regarding the legality of the North Carolina law, and North Carolina risks losing approximately $2 billion annually in federal funds if it loses the lawsuits and refuses to rescind the law.

We can’t predict how long it will take to settle these issues, or which way our legislatures and courts will go. But the arc of American history teaches us that personal rights – and protections from discrimination – once enshrined in law, are seldom withdrawn. We think it’s likely that LGBT people will receive more legal protection (we’ll find a way to keep the creeps out of the girls’ locker room) and in the meantime employers must traverse a legal minefield.

Best practices to keep your business out of trouble

From a risk management standpoint, we recommend that you conduct your business as if broad LGBT protections already are in place. This means:

  • Don’t ask employees or applicants about sexual identity.
  • Don’t assume there are no laws or regulations that affect your business. While South Carolina has no state law on LGBT discrimination, the cities of Columbia and Charleston, along with Richland and Charleston counties, do have laws that prohibit workplace LGBT discrimination. Federal contractors are subject to anti-discrimination rules laid down in an executive order and OSHA also has weighed in with its own rules.
  • Make sure your employees know that bullying and harassment toward LGBT people (or anyone) won’t be tolerated.
  • As with other employees who fall into protected categories, carefully create a paper trail if you anticipate having to take adverse action based on work performance.
  • Unisex, single-occupancy restrooms solve the “choice of restroom” problem, but that’s not practical for all businesses. If restroom choice becomes an issue in your workplace, don’t try to figure it out yourself. You need legal advice.

It took many years for same-sex marriage to be put to rest in the courts, and we suspect these latest cultural war battles also will take a few years to resolve as the courts, legislatures and public opinion find their footing. In the meantime, do your best to treat all of your employees with respect, and you’ll increase the likelihood that you’ll stay out of court and the news.

Reginald W. Belcher is a shareholder at Turner Padget in Columbia, S.C., and represents businesses and employers throughout South Carolina. The South Carolina Supreme Court has certified him as a specialist in Employment and Labor Law. He may be reached at rbelcher@turnerpadget.com or (803) 227-4314.

Jessica L. Gooding is an associate in the Columbia, S.C., office of Turner Padget, where her practice focuses on employment litigation and personal injury litigation. She may be reached at jgooding@turnerpadget.com or (803) 227-4338.

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