Conducting business in the Virgin Islands poses unique challenges not often encountered in the states, but also unique opportunities. This 20-part series will offer tips for doing business in the U.S. Virgin Islands, covering a broad array of topics affecting employers. Part six of this series addresses the Supreme Court of the United States’ Bostock decision.
Tip 6: Consider the Implications of the Supreme Court of the United States’ Bostock decision for Virgin Islands Employers
In Bostock v. Clayton County, Georgia, the Supreme Court of the United States, on June 15, 2020, ruled that Title VII of the Civil Rights Act of 1964 prohibits sex discrimination including discrimination against gay and transgender individuals. As the Supreme Court explained, “An individual’s homosexuality or transgender status is not relevant to employment decisions. That’s because it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.” Title VII covers all private employers, state and local governments, and educational institutions that employ 15 or more individuals. In addition, Title VII also covers private and public employment agencies, labor organizations, and joint labor management committees controlling apprenticeship and training. As a result, the Bostock decision has important implications for employers that employ 15 or more employees and do business in the Virgin Islands.
Employers with fewer than 15 employees may want to be mindful of the Bostock decision as well. All employers doing business in the Virgin Islands, regardless of size, are covered by the Virgin Islands Civil Rights Act (VICRA), which makes it unlawful “to refuse to hire or employ or to bar or to discharge from employment” an individual because of sex or to “discriminate against such individual in compensation or in terms, conditions or privileges of employment.” Although it will be left to Virgin Islands courts to determine whether discrimination based upon sexual orientation or gender identity constitutes discrimination based upon sex under VICRA, employers can expect that litigants will urge Virgin Islands courts to interpret VICRA in the same manner that the Supreme Court has now interpreted Title VII.
As a result, Virgin Islands employers may wish to consider taking the following actions to ensure that employees and applicants are treated equally and without regard to either sexual orientation or gender identity.
Update Nondiscrimination and Anti-harassment Policies
Employers may wish to review their nondiscrimination and anti-harassment policies to determine if those policies expressly address treatment based upon sexual orientation and gender identity. If those characteristics are not expressly mentioned, employers may want to consider modifying their internal policies to include those categories. As the dissenting opinions in Bostock reflect, discrimination “because of sex” has not been uniformly understood and interpreted to encompass sexual orientation or gender identity. Updating workplace policies to include these categories may help to educate and inform employees about the range of conduct that is not allowed in the workplace.
Educate Supervisors, Managers, and Individuals Responsible for Conducting Workplace Investigations
Employers doing business in the Virgin Islands may also wish to educate supervisors, managers, and individuals responsible for conducting investigations about their responsibility to implement policies prohibiting discrimination or harassment on the basis of sexual orientation or gender identity. One possible byproduct of Bostock is that individuals who believe that they have experienced unfavorable treatment because of their sexual orientation or gender identity will be more willing to come forward because the uncertainty about the extent of Title VII’s coverage has now been laid to rest. Because supervisors and managers have a heightened responsibility to ensure compliance with anti-discrimination laws, employers may want to ensure that these individuals clearly understand the scope of the protections related to discrimination “because of sex” under federal (and potentially, territorial) law.
Update Training Materials
Although employers are not obligated under the laws of the Virgin Islands to conduct sexual harassment training on an annual basis, training at regular intervals remains a potentially effective way to ensure that all employees understand their employers’ expectations regarding respectful workplace conduct. If the materials currently utilized do not address discrimination or harassment on the basis of sexual orientation and gender identity, employers may wish to update training materials to ensure that all members of their workforces have a consistent understanding of acceptable workplace conduct, regardless of any personal beliefs held by an employee. Such training may include topics such as addressing individuals by preferred pronouns and reinforcing respectful interactions in communications that occur both in person and when utilizing email or other written platforms made available by the employer.
Evaluate Dress Codes and Grooming Policies
Employers with dress codes and grooming policies may want to review, and if appropriate, revise those policies to ensure that they are gender-neutral. Specifically, employers may want to evaluate policies that address length of hair, presence of facial hair, use of hair coverings, or policies that specify particular uniforms based upon the gender of an individual and take appropriate measures to ensure that the emphasis is on attire that is appropriate for the work setting and consistent with business necessity rather than on the sex assigned at birth.
Address Access to Bathrooms and Other Sex-Segregated Facilities
In the wake of Bostock, employers doing business in the Virgin Islands also might want to consider the existence of guidelines regarding the use of bathrooms, locker rooms, and other sex-segregated facilities. Although employers may retain restrooms and similar facilities that are designated by gender, employers may want to allow individuals to utilize the facilities that are consistent with their gender identity.
Ogletree Deakins will post additional tips for employers doing business in the U.S. Virgin Islands in 2020 on the firm’s U.S. Virgin Islands blog.