On June 15th, the U.S. Supreme Court ruled that the 1964 Civil Rights Act protects gay, lesbian, and transgender employees from discrimination based on sex. In the most anticipated employment decision of the year, the high court found that an employer who fires an individual merely for being gay or transgender violates Title VII of the Civil Rights Act of 1964.

"An individual's homosexuality or transgender status is not relevant to employment decisions," wrote Justice Neil Gorsuch for the court. "That's because it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex."

Employers should review current nondiscrimination policies and update them to explicitly include sexual orientation and gender identity. Employers with less than 15 employees will continue to be governed by applicable state and local anti-discrimination laws.

During Turbulent Times

Social unrest, such as in  the wake of the anti-racist movements taking place around the country,  leads many to social media posting to express their voice. This leaves employers to question what their rights and responsibilities are with regard to employee's social media, and how to respond when an employee makes offensive off-duty remarks . Here are some things to keep in mind:

The First Amendment prevents the federal government from interfering with freedom of speech, but it does not guarantee that right in private settings. A private-sector employee's comments (in person or in writing) are not shielded from employment consequences under the guise of freedom of speech.

In Missouri, employers are permitted to take adverse employment actions against employees based on lawful off-duty conduct on social media or in person. Once someone complains to an employer or calls attention to an employee's off-duty comments or actions, it becomes the employer's concern, particularly if the conduct constitutes harassment based on a protected class.

Missouri law prohibits employers from retaliating against employees for engaging in political activities. However, employers should consider whether or not an offensive post or speech is directly tied to an employee's political affiliation. Expressions of racism or other harassment are not political speech.

An employer may be liable for an employee's offensive social media post if it is aware of discriminatory harassment-even if it is done through an employee's personal social media use and outside of work hours-if the conduct creates a hostile work environment.

Employees may be subject to disciplinary action up to and including termination for social media posts that include:

• Hate speech of any kind (regarding any protected classes),
• Speech that is severe enough to constitute a hostile work environment (regarding any protected classes),
• Threats to employee safety or of workplace violence,
• Trade secrets, and
• Confidential and proprietary company information.

Source:   The National Law Review

Can Employers Require Testing for 

COVID-19 Antibodies?

Recently, the U.S. Equal Employment Opportunity Commission posted an update to address questions related to the COVID-19 pandemic. One question added to the publication, " What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws" explains that in light of current CDC Interim Guidelines, the ADA at this time does not allow employers to require antibody testing before allowing employees to re-enter the workplace.

An antibody test is different from a test to determine if someone has an active case of COVID-19.  The EEOC has already stated that COVID-19 viral tests may be  permissible under the ADA.

Source:  US Equal Employment Opportunity Commission