Urgent message: The United States Supreme Court ruled recently that LGBTQ discrimination is prohibited under the 1964 Civil Rights Act. Urgent care centers may cultivate a tolerant and diverse work environment while protecting themselves against claims of discrimination by adopting and consistently following policies related to hiring, evaluation, promotion, benefits, etc. for all employees.

Alan A. Ayers, MBA, MAcc is Chief Executive Officer of Velocity Urgent Care and is Practice Management Editor of The Journal of Urgent Care Medicine.

The United States Supreme Court recently ruled in a 6-3 decision that Title VII of the 1964 Civil Rights Act applies to LGBTQ+ individuals. In Bostock v Clayton County, Georgia,1 the Court extended protections to millions of workers nationwide.

“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,” Justice Neil Gorsuch wrote in the majority opinion.

The statute imposes liability on employers when they fail or refuse to hire, discharge, or otherwise discriminate against someone because of a statutorily protected characteristic like sex (ie, gender or sexual orientation).2

Urgent care owners and their managers must now try to understand what this ruling means to them, and what they should do or be doing differently.

The “But-for” Test

Title VII prohibits employers from taking certain actions “because of ” sex. Gorsuch explained in Bostock that “[i]n the language of law, this means that Title VII’s ‘because of ‘ test incorporates the ‘simple’ and ‘traditional’ standard of but-for causation.”1

He went on to state “[t]hat form of causation is established whenever a particular outcome would not have happened ‘but for’ the purported cause. In other words, a but-for test directs us to change one thing at a time and see if the outcome changes. If it does, we have found a but-for cause.”1

Thus, in the simplest of terms, the analysis is: Would the employer treat an employee or job applicant differently but for the fact that the employee is LGBTQ?

Title VII

Title VII of the Civil Rights Act of 1964 prohibits employment discrimination on the basis of race, color, religion, sex, or national origin. In Bostock, the Supreme Court determined that an employer cannot fire someone simply for being homosexual or transgender. “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,” Gorsuch opined.1

Title VII applies to employers with 15 or more employees.3 An urgent care may employ a number of part-time staff. The Equal Employment Opportunity Commission explains that a worker typically can be counted as an “employee” for purposes of Title VII if he or she has worked for the employer for at least 20 calendar weeks (in the current year or last). As a result, some part-time workers at an urgent care center can be “covered” as employees to count towards an employer being “covered”—meaning that the law applies to that company.4

It’s important to note that an urgent care with fewer than 15 employees may not be subject to Title VII. However, there may be other state and local discrimination laws that do apply to a smaller, more independent practice.5 For example, the Florida Civil Rights Act6 also covers employers with 15 employees, but some county ordinances like those in Florida’s Miami-Dade7 and Broward8 cover employers with only five workers. California also is set at five,9 and New York is four or more employees.10

Bostock’s Application to Urgent Care

Of course, one would hope that an urgent care employer is not going to inquire as to this aspect of an employee’s or potential employee’s personal life. For example, a hiring manager would not ask female applicants if they have children, or if they’re planning to have a child in the future. Nor would they ask a woman if she were married in an interview—which could imply the manager is weighing the likelihood of the applicant becoming pregnant.

While those questions and situations may be easier to discern, an urgent care employer may wonder if there is a purpose in knowing whether any of its employees is gay or transgender. Unlike race or sex, it may not be obvious to an employer if an individual is LGBTQ or not. While an employer might believe it’s a good idea to make a record of any LGBTQ employees (such as for demographic purposes), that would in effect be singling that person out. A wiser course may be to not know and focus on treating all employees fairly and with respect.

Hiring Discrimination and LGBTQ

It’s not uncommon for an interviewee to share personal information in an interview. They may acknowledge that they’re LGBTQ in the conversation.

A suggested response might be, “Thank you, we are an inclusive workplace and have a zero tolerance policy for harassment or discrimination of any kind.” And presumably you have the policies in place and a corporate culture that backs up that statement.

There are other scenarios that are not so straightforward, however. Consider a situation in which a candidate states, “I was fired from my last job because I’m a lesbian.” It may be that she is not be qualified for the urgent care setting on the basis of her experience and educational background, but now that the fact of her sexual orientation is out in the open, an employer may feel concerned that failing to hire this individual will spark a hiring discrimination action. To avoid this, employers should provide their hiring managers with interview policies and the ability to document the interview.

Discrimination in hiring would arise if the urgent care refused to hire a job applicant because of race, nationality, gender, family status, age, disability, religion, sexual orientation, and now LGBT status.11 Focus on the job requirements and the applicant’s qualifications.

How to Avoid LGBT Discrimination Lawsuits

As mentioned above, treating all employees fairly and with respect goes a long way with a staff.

Urgent care employers should have policies and procedures in place to address performance issues. If any employee is having a performance issue, HR and the manager should be able to discuss the expectations of the position and how the individual is not meeting expectations. This requires standard job descriptions, core competencies, and job expectations for every different position in the facility. Managers and human resources directors should be able to cite to the same set of expectations for every medical tech or every PA—no matter their race, nationality, gender, family status, age, disability, religion, sexual orientation, or LGBTQ status.

Regular, formal performance reviews for every employee are time-consuming and laborious, but they are valuable documentation of that person’s treatment and work record in the event that an issue arises and has the potential to become litigious, especially if the individual’s performance continues to suffer and the urgent care is force to terminate their employment.

Takeaway

Hopefully, an employer wants to retain good workers. Terminating an employee just because he or she is LGBTQ would invoke the “but for” test explained by Gorsuch in Bostock.

The termination process is time-consuming, costly, and stressful. In addition, onboarding a new replacement costs time and money in terms of the hiring process, interviews, training, and bringing the new employee up to speed. It doesn’t make sense—business-wise or otherwise—for employers to fire good people for nonperformance related biases.

Urgent cares should review their policies for hiring, evaluation, promotion, harassment, benefits, and other workplace situations to document and stipulate the expectations of all employees.

References

  1. Bostock v. Clayton Cty., 17-1618, 17-1623, 18-107, 2020 U.S. LEXIS 3252, at *1 (June 15, 2020).
  2. 42 U.S.C.S. § 2000e-2(a)(1).
  3. Title VII of the Civil Rights Act of 1964, Society for Human Resource Management (2020). Available at: https://www.shrm.org/hr-today/public-policy/hr-public-policy-issues/pages/titleviiofthecivilrightsactof1964.aspx.
  4. How Do You Count the Number of Employees an Employer Has? S. Equal Employment Opportunity Commission. Available at: https://www.eeoc.gov/how-do-you-count-number-employees-employer-has.
  5. Sams K. What small business owners need to know about anti-discrimination laws. NFIB. February 12, 2018. (February 12, 2018). Available at: https://www.nfib.com/content/resources/labor/what-small-business-owners-need-to-know-about-anti-discrimination-laws/.
  6. The 2019 Florida Statutes Online Sunshine (2019). Available at: http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&URL=0700-0799/0760/0760.html.
  7. Miami-Dade County (FL), Human Rights & Fair Employment Practices, Commission on Human Rights (2020). Retrieved at https://www.miamidade.gov/global/humanresources/fair-employment/human-rights-commission.page.
  8. Broward County (FL), Denied Housing? Now You Can Find Out Why (2020). Available at: https://www.broward.org/Intergovernmental/Pages/HumanRights.aspx.
  9. Employment Discrimination, California Department of Fair Employment and Housing (2020). Retrieved at https://www.dfeh.ca.gov/employment/.
  10. New Workplace Discrimination and Harassment Protections, New York Division of Human Rights. Retrieved at https://dhr.ny.gov/workplaceharassment. See Donna Ballman, Why Your Employer May Not Be Too
  11. See Hiring Discrimination: Everything You Need to Know, UpCounsel (2020). Retrieved at https://www.upcounsel.com/hiring-discrimination.
Update: The Civil Rights Act Applies to LGBTQ Employees; What Does This Mean for Urgent Care Centers?

Alan A. Ayers, MBA, MAcc

Chief Executive Officer of Velocity Urgent Care, LLC and is Practice Management Editor of The Journal of Urgent Care Medicine
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