This past June, the U.S. Supreme Court decision in Bostock v. Clayton County expanded the protections of Title VII of the Civil Rights Act of 1964 (which prohibits an employer from discriminating against an employee or applicant "because of ... sex") to include protection from employment discrimination based on an individual's sexual orientation or gender identity. The momentous holding fundamentally changed Title VII jurisprudence, and it didn't take long for courts to apply the Bostock holding to other areas of the law, including Title IX.

Now more than ever, employers are facing difficult decisions about workforce operations. In addition to the time- and attention-consuming obligations of on-site safety protocols, remote workforce policies, information and data security, and what to communicate to employees about vaccination rules, savvy employers are keeping up with their evolving expectations on the civil rights front. Last year, the U.S. Supreme Court settled, once and for all, that gender identity and sexual orientation are protected “sex-based” characteristics under federal law in the landmark case Bostock v. Clayton County. Employers in the education sector have, arguably, even greater expectations under Title IX regulations that went into effect in 2020 and provide heightened due process protections and grievance procedures for addressing sexual harassment complaints that meet certain thresholds in education programs and activities.

Whole Foods employees wearing Black Lives Matter (BLM) masks and attire filed a class action lawsuit against the grocery company and Amazon after being prohibited from wearing the gear with the BLM messaging and disciplined for doing it anyway. They alleged race-based discrimination and retaliation claims. The U.S. District Court for the District of Massachusetts dismissed almost all of the employees’ race-based claims. Although the court implied the two companies acted unfairly or unwisely toward the employees, it determined their actions weren’t unlawful.