In a decision with major implications for employers across the U.S., the Supreme Court in a 6-3 decision today held that Title VII of the Civil Rights Act of 1964 protects employees against discrimination based on sexual orientation and transgender status. The decision in Bostock v. Clayton County resolves a split among federal appellate courts as to whether the federal ban on discrimination based on “sex” prohibits discrimination and harassment of LGBTQ people.
The Supreme Court’s decision involves three consolidated cases that address the jurisdictional question. The majority opinion noted that under long-standing legal precedent, sex cannot be the sole or contributing reason behind employment decisions. The court then noted that by definition, discrimination on the basis of sexual orientation or transgender status involves making decisions at least in part due to the sex of the affected employee. For example, if two employees, one female and one male, are attracted to men, and the male is fired for this reason, the decision was made due to sex. Even though Congress may not have intended Title VII to extend its protections to LGBTQ employees in 1964, the plain language of the statute compels this interpretation.
Currently, less than half of U.S. states have laws that prohibit employment discrimination on these bases. Employees in other states can now file charges of discrimination with the EEOC, and they can pursue legal claims in federal court using the remedies available under Title VII. In states with existing legal protections, employees now have an alternative federal remedy available.
Many employers include sexual orientation and gender identity in their equal opportunity employment policies, even if not required under local law. For employers that have not taken this step, Bostock should compel them to amend their policies and procedures to prohibit discrimination and harassment on this basis. Employers should also incorporate into their anti-discrimination and anti-harassment training clear explanations that these mandates extend to LGBTQ employees.
The small minority of employers that have maintained workplace policies openly hostile to LGBTQ people face a choice of immediately changing their practices or facing significant legal exposure.