This week, the United States Supreme Court issued an historic decision about the interpretation of federal employment discrimination law in Bostock v. Clayton County and R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission (“Bostock”). The Court was interpreting the Civil Rights Act of 1964, which outlaws discrimination in the workplace on the basis of race, color, religion, sex, or national origin. The Court held in Bostock that discrimination based on sexual orientation or gender identity is discrimination based on sex, and is therefore prohibited by Title VII. Justice Neil Gorsuch wrote the opinion joined by Chief Justice John Roberts, and the four more liberal members of the Court to form a majority.
This issue was before the Supreme Court because for decades, there had been a split among the federal courts about whether the prohibition against sex discrimination in Title VII also shielded employees from discrimination due to their sexual orientation or gender identity. In the Bostock decision, Justice Gorsuch explained, “An individual’s homosexuality or transgender status is not relevant to employment decisions. That’s because it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”
The Bostock ruling arose from a combination of cases where gay and transgender workers were fired because of those characteristics. In fact, the employers in the cases did not dispute that they fired the plaintiffs for being homosexual or transgender. Specifically, Plaintiff Gerald Bostock was fired from a county job in Georgia after he joined a gay softball team, and Plaintiff Donald Zarda, a skydiving instructor, was fired after he told a female client not to worry about being strapped tightly to him during a tandem dive, because he was “100 percent gay.” Plaintiff Aimee Stephens, who worked for six years for her employer and presented as a male, wrote a letter to her employer explaining that she planned to “live and work full-time as a woman” after she returned from an upcoming vacation, and was fired shortly after.
The Bostock opinion was narrow in that it specifically did not address questions related to the use of sex-segregated bathrooms and locker rooms. Justice Gorsuch explained “[w]e do not purport to address bathrooms, locker rooms or anything else of the kind.” The opinion goes on to state “[w]hether other policies and practices might or might not qualify as unlawful discrimination or find justifications under other provisions of Title VII are questions for future cases, not these.” The Court also noted it was not deciding how Title VII interacts with doctrines protecting religious liberty, and those may be issues that are addressed in future case.
Implications for Employers
Title VII applies to all public and private employers with 15 or more employees. Under the Bostock decision, a covered employer may not discriminate based on sexual orientation or gender identity with regard to any term, condition, or privilege of employment. Areas that give rise to violations include hiring, promoting, disciplining, discharging, retaliating, or other adverse actions because of a protected status.
In some cases, employers’ anti-discrimination and anti-harassment policies may need to be revised based on Bostock. This is also a good opportunity for employers to ensure there is an employee complaint procedure for reporting harassment, discrimination and/or retaliation, and to ensure that employees receive anti-discrimination and anti-harassment training. Lashly & Baer also offers training programs for employers as part of our overall efforts to assist our clients in achieving and maintaining legal compliance.