On June 18, the Supreme Court of the United States ruled that Title VII of the 1964 Civil Right Act makes it unlawful to discriminate against LGBTQ workers in Bostock V. Clayton County, Georgia. SCOTUS held that an employer may not discriminate against individuals because of their sex and that “the straightforward application of Title VII’s terms” means that “sex” includes different treatment based on one’s homosexuality or transgender status.
It is no surprise that sexual orientation, gender identity and gender expression were given full protection as protected categories under Title VII of the Civil Rights Act of 1964. The surprise was that this court accomplished it. The decision, written by Justice Neil Gorsuch, is based on textualism — the belief that the meaning of the law turns on the words alone and not on the drafters’ intent.
Justice Gorsuch observed that Title VII bans any employment discrimination that occurs “because of . . . sex” and opined that “An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision; exactly what Title VII forbids.”
The court’s decision is a game changer for several reasons and marks a major victory for LGBTQ employees across the country. It provides nationwide protection for LGBTQ employees who had previously relied on inconsistent protection through a patchwork of state and local laws. The Employment Nondiscrimination Act was floated in Congress year after year beginning in 1991, without success, to amend Title VII and make clear that sexual orientation, gender identity and gender expression were included in the ban on sex discrimination. With the Bostock ruling, history has been made, but there are still some open issues.
The court’s decision leaves a gap in that Title VII only covers employers of 15+ employees for at least 20 weeks a year. However, the same rule will apply to many smaller employers via state law or local ordinance. To see a full map of the hundreds of State and local enactments, a good resource is the Human Rights Campaign website.
Another open issue is whether some employers will be allowed to claim an exemption from the ban on LGBTQ discrimination based on religious grounds. SCOTUS will hear a case in the fall asking whether religious organizations have a right to engage in anti-LGBTQ discrimination.
This ruling marks a major shift in the employment law landscape. Employers are now prohibited from discriminating against LGBTQ employees and can be subject to Title VII’s considerable reach against unequal treatment. Here are few precautionary measures that employers should take in the wake of the Bostock decision:
- Look at your EEO policy and think about what you want to say. This new level of protection is already implicit in your ban on discrimination based on sex and gender, but some employers will want to add “sexual orientation, gender identity and gender expression” to convey their support of those communities. Some jurisdictions (for example, California) require that sexual orientation, gender identity and gender expression be expressly stated within an employer’s EEO or anti-harassment policies to comply with state or local law.
- Look at your supervisory training and amend it to make clear that different treatment of job candidates and employees based on sexual orientation, gender identity and gender expression is prohibited by law and by company policy.
- Look at your employee training, especially the anti-harassment training, and make clear that workplace harassment based on sexual orientation, gender identity and gender expression is prohibited by law and by company policy, and that violations of the policy will result in corrective action up to and including termination of employment. This training should go further than simply parroting what the law says. It should have a behavioral approach that opens employees’ eyes to their blind spots and makes clear that “I was just joking” will not be an excuse or a defense.
- Look at your human resources department and ensure that they are aware of the change in the law and that they are equipped to handle situations as they arise. The HR department should have the backing of the executive team when it gets pushback from managers, supervisors or other employees who resent or resist the change.
Audrey Mross co-chairs Munck Wilson Mandala’s employment and labor group and has 40 years of experience as both an HR pro and an attorney. She represents clients in matters involving discrimination, harassment and retaliation, and she offers on-site HR training on anti-harassment, diversity/inclusion, and other topics. Audrey has given more than 700 speeches, radio broadcasts and webcasts since 1995.