Workplace Challenges Remain for LGBTQ+ Lawyers

• Pages: 18-19
• Date: 01 October 2023
• Subject Matter: Civil Law

Published in Litigation News Volume 49, Number 1, Fall 2023. © 202 3 by the American Bar As sociation. Reprodu ced with permission . All rights reser ved. This information o r any portion ther eof may not be copied o r disseminated in any form

or by any means or stored i n an electronic database o r retrieval syst em without the expr ess written co nsent of the American B ar Association.

Workplace Challenges Remain for

LGBTQ+ Lawyers

LGBTQ+ lawyers now comprise 4.17 percent of all lawyers, a number representing a

four-fold increase since 2002. Moreover, LGBTQ+ individuals account for 6.14 percent

of all associates and 9.37 percent of summer associates. Despite the increase, however,

challenges remain in creating welcoming and inclusive environments in the workplace.

According to 2Civility’s Julia Roundtree

Livingston, law f‌irms can prioritize cre-

ating welcoming and supportive envi-

ronments for LGBTQ+ lawyers in many

ways. They can oer inclusive benef‌its

and policies, host LGBTQ+ employee

resource groups, and conduct diversity

training for all employees. Additionally,

prioritizing mentoring, particularly in

business development, can promote in-

clusive environments. Finally, other law-

yers “can create more welcoming and

inclusive environments by acknowledg-

ing and respecting an individual’s pro-

nouns and attending LGBTQ+ events to

show their support for their colleagues

and the community.”

When Can You Deny a Religious

Accommodation?

What exactly are em ployers’ religiou s accommodation

obligations un der Title VII of the C ivil Rights Act of 1 964?

Laura Lawless o f Employment Law Worldview r eviewed

the unanimou s opinion in Gro v. DeJoy, the f‌irst U.S .

Supreme Cour t decision in 50 years to analyze what e m-

ployers must prove to deny rel igious accomm odations.

Gerald Gro was a C hristian employee of the U.S. P ostal

Service (US PS) who objected to working on Sund ays.

When his branc h began Sunday package deliver y, Gro

refused to work, an d the USPS assigned his deliver ies to

other sta. Gro resi gned after two ye ars of progressive

discipline an d then sued unde r Title VII, alleging the USP S

could have accommodated him without undue hardship.

Both the trial and a ppellate cour ts sided with the US PS.

On appeal, th e Supreme Court took the oppo rtunity to re-

visit its opinion i n Trans World Airlines, In c. v. Hardison. In

Hardison, the Court h eld requiring the employer to accom-

modate an employee ’s Sabbath obse rvances was unr ea-

sonable bec ause it would requ ire violating unio n seniority

© Getty Image s

rights. In Gro, the Cou rt observed that Hardison had

been reduced to a si ngle sentence relating to de minimis

cost, which lower cou rts have conf‌lated with the undue

hardship anal ysis. The Cour t clarif‌ied that the analysis of

the burden imp osed by a specif‌ic ac commodation m ust

be performe d in the overall context of the employer’s

business. An employer must show the accommodation

would result in subs tantial increased costs in relati on

to the conduct of it s particular b usiness. Ul timately, the

Court vacate d because the U SPS had determ ined that

forcing other em ployees to work overtime wo uld consti-

tute an undue hard ship without considering other o ptions

that may have allowed Gro to ref use Sunday work (e.g.,

voluntary shift-swapping). Lawless believes the Gro

decision may come a s a surprise to employers who think

any imposition on business justif‌ies denying a religious

accommodatio n. Given the recen t spike in religious d is-

crimination cha rges, many related to COVID-19 meas ures,

Lawless predic ts “the Court’s decisio n signif‌icantly shifts

the landscape for employers.”

FALL 2023 • VOL. 4 9 NO. 1

18 | ABA LITIGATION SECTIO N

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