Last month, the United States Supreme Court ruled that federal law prohibits employment discrimination on the basis of gender identity and sexual orientation. The decision confirms that Title VII of the Civil Rights Act of 1964 protects LGBTQ employees from discrimination on the basis of “sex.” This new landmark decision has immediate, practical consequences for employers. Prior to this decision, discrimination against LGBTQ employees was legal in 27 states; now, employment discrimination based on sexual orientation or gender identity is prohibited nationwide.
Title VII forbids employment discrimination against employees based on specific protected characteristics including “sex.” In Bostock v. Clayton Country, Georgia, the Court held in a 6-3 decision that Title VII’s prohibition against discrimination based on “sex” necessarily includes discrimination based on sexual orientation or gender identity.
The Bostock case encompassed three incidents of employment discrimination, each of which involved an employer who terminated employees as a result of their sexual orientation or gender identity. Each employee sued, alleging “sex” discrimination under Title VI. Title VII, however, does not explicitly prohibit discrimination based on sexual orientation or gender identity; therefore, the Court had to decide whether or not Title VII’s prohibition against sex discrimination protected individuals on these bases. The Court concluded that it does.
Justice Neil Gorsuch authored the Court’s majority opinion, which noted that although sexual orientation and gender identity are “distinct concepts from sex,” it was “impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.” The majority also recognized that Congress may not have intended this result, but the text of the statute must control and an employee’s sexual orientation and gender identity are “inextricably bound up with sex.”
The Court went out of its way to make clear that the Bostock decision was limited to the reach of Title VII and expressly stated that it was not addressing hot-button issues such as sex-segregated bathrooms, locker rooms, dress codes, or exemptions based on freedom of religion. Instead, the Court noted that future litigation will be needed to resolve such complicated questions, and future litigation is now what we can expect!
Key Considerations for Employers
All employers are affected by the Bostock decision, so we encourage employers to take immediate steps to comply with the new law, including the following:
- Review and update Equal Employment Opportunity (EEO), anti-discrimination, and anti-harassment policies to ensure the prohibition of discrimination based on sexual orientation and gender identity.
- Review policies and procedures for making personnel decisions to ensure compliance with Bostock, including employment policies regarding the application process, hiring, training, employee benefits and health plan coverage, leave and insurance benefits, and promotions.
- Review and update employee training programs on harassment and discrimination prevention to ensure that they educate employees that these legal protections now extend to LGBTQ employees. Employers in states that did not previously prohibit discrimination based on sexual orientation and gender identity should also consider doing immediate training for employees, and managers in particular, to ensure they are aware of and comply with these changes in the law.
What are the future implications for employers in light of this landmark decision?
- Employers should anticipate that the Bostock decision’s expansion of the definition of “sex” will lead to increased employment litigation based on sexual orientation and gender identity.
- Employers should also anticipate future court cases to decide whether the Bostock decision requires gender-neutral restrooms in workplaces, or whether health plans now needs to cover other “sex”- based healthcare issues, such as gender affirmation surgeries.
- It is unclear how this recent ruling will affect interpretations of other federal laws barring discrimination on the basis of sex (such as Title IX, the Equal Pay Act, and the Affordable Care Act), so we encourage employers to stay up-to-date on developments in this area.
- We anticipate that the Equal Employment Opportunity Commission may issue additional guidance in light of the Bostock. Therefore, we will be closely monitoring this issue and any related guidance.
Employers with questions about compliance with the new standards and the impact on their businesses, are encouraged to reach out to Jacqueline Piscitello at email@example.com to ensure compliance with the new expansion of the law.
Jacqueline Piscitello has nearly 25 years of legal experience and has been a partner with Outside GC since 2005. Jackie has experience in a wide range of areas, including advising on sophisticated employment and labor matters, technology, litigation and dispute resolution, as well as a variety of general corporate and governance matters.