On May 10, 2021, the Department of Health and Human Services (HHS) announced that the Office for Civil Rights will interpret and enforce Section 1557 and Title IX’s prohibitions on discrimination based on sex to include: (1) discrimination on the basis of sexual orientation; and (2) discrimination on the basis of gender identity. Section 1557 prohibits discrimination on the basis of race, color, national origin, sex, age, or disability in covered health programs or activities.
On June 15, 2020, the U.S. Supreme Court previously held that Title VII of the Civil Rights Act of 1964 (Title VII)’s prohibition on employment discrimination based on sex encompasses discrimination based on sexual orientation and gender identity. The Office for Civil Rights (OCR) will interpret Section 1557’s prohibition on discrimination on the basis of sex to include: (1) discrimination on the basis of sexual orientation; and (2) discrimination on the basis of gender identity. This interpretation will guide OCR in processing complaints and conducting investigations but does not itself determine the outcome in any particular case or set of facts.
The OCR at the U.S. Department of Health and Human Services is responsible for enforcing Section 1557 of the Affordable Care Act (Section 1557) and regulations issued under Section 1557, protecting the civil rights of individuals who access or seek to access covered health programs or activities. Covered entities are prohibited from discriminating against consumers on the basis of sexual orientation or gender identity.
The Department of Health and Human Services notice on discrimination of sexual orientation and gender identity can be accessed at: Notification of Interpretation and Enforcement of Section 1557 of the Affordable Care Act and Title IX of the Education Amendments of 1972 (hhs.gov).
Issue:
Workplace discrimination can be defined as treating a person unequally based on his or her race, gender, ethnicity, age, religion, or disability. Title VII of the Civil Rights Act of 1964 mandates that no person employed by, or seeking employment with, an entity can be discriminated against based on race, gender, ethnicity, age, religion, or disability. While federal law prohibits discrimination in the workplace, most states have enacted their own laws regarding workplace discrimination, so be sure to know your own state’s laws which may include additional categories. Ensure that all staff are aware of the revised definition of sexual discrimination. Retaliation is also illegal. Each facility should have a zero-tolerance policy for anyone who retaliates against a person for bringing an issue to the facility’s attention. It is imperative that all staff members are aware of what can be viewed as discrimination and retaliation and the steps that should be taken if an employee feels that he or she has been a victim of discrimination or retaliation in their workplace.
Discussion Points:
- Review your policies and procedures on prevention of discrimination and retaliation in the workplace. Update the policies as needed.
- Train all staff on prevention of discrimination and retaliation and what they should do if they suspect they have been a victim of discrimination or retaliation or observe it occurring to others in the workplace. Provide education about reporting options, including the anonymous hotline. Document that the trainings occurred and file the signed document in each employee’s education file.
- Periodically conduct audits with staff to ensure that they can define discrimination and retaliation in the workplace and are aware of the steps that they should take if they have concern that they or a coworker may be a victim of discrimination or retaliation. Additional information is available in the Med-Net Corporate Compliance and Ethics Manual Chapter 1, Compliance and Ethics Program.
