Inclusion isn't political #HappyPrideMonth🌈

It's Pride Month. And it matters now more than ever.

Ten years ago, a client fired me. Why? Because I suggested they add LGBTQ+ protections to their employee handbook. There was no federal law requiring it back then. They didn’t support "that lifestyle." I wasn't "a good fit" as their lawyer. I wanted to help them do the right thing, and they wanted to pretend certain people didn't exist. As much as I hoped they'd listen, they were right: I wasn't the right lawyer for them. And I'm proud of that.

Fast forward to 2020: the Supreme Court decided Bostock v. Clayton County, holding that Title VII protects employees from discrimination based on sexual orientation and gender identity. It was a legal game-changer. But it didn't change everything.

Now, in 2025, LGBTQ+ rights are under a coordinated attack—through legislation, litigation, and relentless rhetoric. And some companies are backing away from DEI altogether, afraid of the backlash.

But here's the thing: inclusion shouldn't be political. Leading with integrity means standing up for your employees, especially when it's not easy.

When rights collide: religious beliefs vs. gender identity in the workplace

An employee tells HR, "I can't use my coworker's preferred pronouns. It's against my religion." What now?

This isn't theoretical or hypothetical—it's happening in businesses across the country. Just ask Spencer Wimmer, a former Generac Power Systems employee who refused to use a transgender colleague's pronouns on the basis of his Christian faith and was fired as a result. He's now filed an EEOC charge, claiming religious discrimination.

This is not an isolated development. It's the front lines of a growing legal and cultural tension: What happens when one person's protected rights collide with another's?

Here's my take: We can't use religion as a license to discriminate.

Federal court guts EEOC guidance on trans rights

Federal court to SCOTUS: "We read your opinion, but we're going to pretend you didn't mean what you said."

That's essentially what just happened in Texas v. EEOC.

A federal judge struck down part of the EEOC's 2024 harassment guidance, ruling that Title VII does not protect transgender workers from being misgendered, denied access to bathrooms aligned with their gender identity, or required to dress according to their sex assigned at birth.

Hate is winning, and it sucks

"We are so thankful for the community we built together. And we’re confident that the connections we've made will continue to have a positive impact in Marysville. Thanks for 3 whimsical and zany years."

That's what Teddy Valinski, owner of Walking Distance Brewing Co., shared on the brewery's Facebook page on Feb. 25, three days before it poured its final pint and closed its doors for good.

Valinski didn't elaborate on the closure, except to tell The Columbus Dispatch, "Without a doubt, our business was slowed down from the slander. ... It's sad that the attacks made even supporters feel unsafe coming."

Reputation Matters: Handling a viral controvery

"With hair on your chest, you shouldn't be wearing a dress."

"You look like an idiot."

That's what Sam Johnson, the former CEO of telehealth company VisuWell, allegedly said while harassing and berating a teenage boy who chose to wear a dress to his high school prom. The confrontation happened at a hotel where the teen and his friends were taking prom pictures.

A video of the incident went viral, capturing Johnson's remarks. The backlash was immediate, and VisuWell's board quickly started worrying about the company's reputation.

This is not normal

THIS IS NOT NORMAL

That was the subject line of an email sent by an EEOC judge to all of her coworkers in response to an agency directive that no orders be issued in LGBTQ+ discrimination cases without first being reviewed by headquarters. The directive was in response to Trump's executive order mandating that the federal government recognize only two sexes.

The judge, Karen Ortiz, urged her colleagues to resist. "It's time for us to embody the civil rights work we were hired to do and honor the oath to the Constitution that we all took," she wrote in her email.

To her surprise, she did not receive a single response. She soon learned why. Her email had been deleted from everyone's inbox. When she followed up, calling for the EEOC's acting chair to resign, the agency cut off her ability to send emails entirely.

EEOC moves to dismiss transgender-discrimination lawsuits

"EEOC seeks to drop race discrimination cases brought on behalf of Black workers, citing Trump's executive order."

This is not a real headline.

But this is: "EEOC seeks to drop transgender discrimination cases, citing Trump's executive order."

How to respond to the Justice Department's DEI hitlist

"The Department of Justice's Civil Rights Division will investigate, eliminate, and penalize illegal DEI and DEIA preferences, mandates, policies, programs, and activities in the private sector." 

 

That's the key sentence from a Feb. 5, 2025, memo that Attorney General Pam Bondi sent to all DOJ employees.

What does it mean? No one really knows. What we do know is that diversity, equity, inclusion, and accessibility are top priorities for this administration. The key question is how the administration defines "illegal."

Here's what we can infer so far:

What the EEOC just said—and didn't say—about the current state of workplace right

"The EEOC is open for business." That's what the agency just declared in a series of frequently asked questions about the impact of Trump's Executive Orders on its operations and the laws it enforces.

The FAQs acknowledge the agency's lack of a quorum and its resulting inability to issue or rescind guidance or policy statements. They also affirm that the EEOC continues to accept and process discrimination charges, conduct investigations, issue right-to-sue letters, and litigate cases.

What hiring and employment look like without DEI

What does a country without DEI look like? Some people say that's what they want. No more diversity, equity, and inclusion initiatives in hiring or the workplace. Just a pure "meritocracy."

So what does that actually look like?

Precedent used to mean something

"Supreme Court justices seldom get an opportunity to fix a botched decision. But as the Court takes up a transgender case, Associate Justice Neil Gorsuch has that chance."

 
Those are the words of The Heritage Foundation (author of Project 2025) in a recent blog post calling for SCOTUS to overturn Bostock's prohibition of transgender discrimination as sex discrimination under Title VII.

"But Jon," you protest, "precedent is sacred; SCOTUS is bound to follow its prior decisions. The Bostock case says that Title VII protects transgender employees from discrimination, period."

"Biological Women Only" = "Whites Only" = Discrimination

Can someone please explain the difference between labeling a women's restroom for "biological" women and labeling one for "white" women? Because I fail to see any difference between these two blatantly discriminatory scenarios.

Rep. Nancy Mace recently affixed the former label to a restroom in the Capitol and introduced legislation requiring people to use Capitol bathrooms that correspond to their sex assigned at birth.

When asked about her actions, Mace openly admitted that her intent was to target Rep.-elect Sarah McBride, the first openly transgender person elected to Congress. This kind of targeting is bigoted, unacceptable, and unlawful.

SCOTUS to weigh in on the burden of proof in "reverse" discrimination cases

The purpose of our workplace discrimination laws is to ensure that all employees are treated equally, right? Maybe … but maybe not.

Next term, the Supreme Court will hear the appeal of Marlean Ames, a straight woman who sued the Department of Youth Services for sex discrimination under Title VII. She claimed she was discriminated against her because of her sexual orientation, alleging that she was passed over for a promotion, demoted, and that a gay man was then promoted into her former position.

Ames claimed sex discrimination, but the 6th Circuit disagreed, citing her failure to establish the necessary "background circumstances."

What are the "background circumstances" needed to show that an employer is among the small subset that discriminates against the majority? According to the 6th Circuit, "Plaintiffs typically make that showing with evidence that a member of the relevant minority group (here, gay people) made the employment decision at issue, or with statistical evidence showing a pattern of discrimination by the employer against members of the majority group." Ames lost because she showed neither.

This is what allyship looks like

"Please know that there is a more than insignificant chance that a lesbian prepared your food last evening. A gay man might have mixed your drinks. A trans woman may have trained your server to give you such great service. A person who identifies with -- get this -- they/them pronouns may have sat you at your table."

That was just a part of the scathing comment the executive of The Original Vinnie's left on a customer's Google review, which used a gay slur to express his displeasure with the perceived sexual orientation of others in the restaurant during a recent visit.

It's illegal to deny coverage for gender-affirming care to a transgender employee simply because the employee is transgender

Can an employer-sponsored health plan legally deny coverage for gender-affirming care to a transgender employee simply because the employee is transgender?

According to the 11th Circuit Court of Appeals in Lange v. Houston Cty., the answer is an unequivocal "No, it cannot!"

Sexual harassment, bathroom, and pronouns

"Sex-based harassment includes harassment based on sexual orientation or gender identity, including … repeated and intentional use of a name or pronoun inconsistent with the individual’s known gender identity … or the denial of access to a bathroom or other sex-segregated facility consistent with the individual’s gender identity."

That the official position of the EEOC in its just released, Enforcement Guidance on Harassment in the Workplace.

EEOC Commissioner Andrea Lucas disagrees. She voted against the final guidance. She believes that the bathroom guidance is an "assault on women's sex-based privacy and safety," and the pronoun guidance is an assault on "speech and belief rights."

“DEI” is not a 4-letter word

"DEI" is not a 4-letter word … no matter what some people want you to believe.

Companies such as Sherwin-Williams are scrapping their internal use of the words "Diversity," "Equity," and "Inclusion," and are replacing them with words such as "Belonging" and "Culture."

Whether you like it or not, it’s illegal to discriminate against transgender employees

“Do you have female parts?”

“You’re not a real man.”
“If I just say ‘she’, that’s what she is.”

Those are among the allegations that the EEOC made against T.C. Wheelers Bar & Pizzeria on behalf of Quinn Gambino, a transgender man the restaurant employed as a cook. Mr. Gambino complained to management about the harassment, but it continued unabated.

Denying gender-affirming health care to transgender employees is unlawful discrimination

Morgan Mesi, a transgender man, has just sued his former employer, Tenzing Wine & Spirits, along with his labor union and group health plan, claiming that they discriminated against him because of his sex by denying medical insurance coverage for gender-affirming care.

To me, Bostock v. Clayton Cty. clearly resolves this issue. In Bostock, SCOTUS held that Title VII's prohibition of sex discrimination also prohibits discrimination because of an employee's sexual orientation or gender identity. Indeed, Bostock could not have been clearer regarding the treatment of transgender employees: "[a]n individual's … transgender status is not relevant to employment decisions."

It’s illegal for gay people to discriminate against straight people … just not on these facts in this case

There is no such thing as "reverse" discrimination. Discrimination is discrimination, whether the victim is, for example, Black or white, female or male, gay or straight. When the employee claiming discrimination is in the majority, however, in the 6th Circuit they must not only show disparate treatment, but also must show "background circumstances to support the suspicion that the defendant is that unusual employer who discriminates against the majority."

Which brings us to the story of Marlean Ames, a straight woman who sued the Ohio Department of Youth Services for sex discrimination under Title VII claiming that her lesbian supervisor discriminated against her because of her sexual orientation. Ames claimed that OHYS passed her over for a promotion, demoted her, and promoted a gay man to her former position.