One year after the U.S. Supreme Court's Title VII ruling prohibited workplace discrimination based on gender identity and sexual orientation, independent agents must make sure their commercial clients are taking action to reduce employment practices liability risk.

But even without the June 2020 Title VII ruling, it's been a year of changes for the employment practices liability market, in large part due to the pandemic. 

“There's been a significant number of COVID-19-related claims filed, and that shouldn't be a surprise," says Chris Williams, employment practices liability product manager at Travelers Insurance, who points to a COVID-19 litigation tracker created by the law firm Jackson Lewis. As of March 24, “there have been 1,868 EPLI lawsuits filed related to COVID-19, and that doesn't include demand letters, Equal Employment Opportunity Commission (EEOC) charges, or other EPLI claims that aren't lawsuits," he says.

The bulk of the claims—37%—are disability and accommodation issues, such as “an employee's request to continue working from home due to a preexisting health condition being denied without interactive discussion," Williams says. Retaliation claims comprise 24% of the COVID-19-related claims, such as an employee alleging they were retaliated against by being fired after requesting a shield at a checkout counter. Discrimination claims related to COVID-19 have also been common, “particularly with rising incidence of discrimination against Asian Americans," Williams says. 

Amid the fluctuating complications of the EPLI market, the Supreme Court's Title VII ruling doesn't bring much change to the 22 states that already had similar protections in place around gender identity and sexual orientation. However, “in the other 28 states where those laws had not been exacted, one would expect to see some claims brought that weren't previously filed," Williams says.

“If you look at statistics from the EEOC, charges alleging LGBT discrimination increased 68% between 2014 and 2020," Williams continues. “Overall, this is one more area where we've seen an increase in claim activity, in addition to COVID-19-­related claims, biometric claims and sexual harassment claims over the last few years."

When it comes to helping commercial clients mitigate the risk of gender identity or sexual orientation discrimination claims, “agents can help employees understand what their obligations are under the law," Williams says. “There's a lot of resources out there—the EEOC provides a wealth of information, and carriers provide resources to help business owners understand what they need to do."

Specific risk mitigation can include “training on particular topics, such as workplace civility and respect," Williams says. “This can be reflected in workplace policies or perhaps even a hotline to answer general employment questions."

“One thing agents can do that would be extremely helpful is to advise their client that if they are going to terminate someone, it is always prudent to talk to an employment lawyer first," he adds. “There's never going to be a perfect guarantee there won't be a lawsuit, but once you're involved in that litigation process you have to incur the cost of the defense lawyer, a potential settlement, a verdict—and that doesn't include the non-monetary component such as the stress of litigation or negative publicity."

In light of the Title VII ruling specifically, “it would be wise to review and update policies and handbooks to ensure that sexual orientation and gender identity are added as protected classes," Williams says. “It would make sense to look at the dress code policies to ensure they're consistent with the law. And provide training to employees, especially management, about what the law is."

“And, of course, an EPLI policy is a must," he adds.

AnneMarie McPherson is IA news editor.