While many states and localities have enacted expansive LGBTQ+ protections against discrimination, the Supreme Court ruled this week that such protections also exist under Federal law and apply nationwide. In a landmark 6-3 decision, the Supreme Court held in Bostock v. Clayton County that Title VII of the Civil Rights Act of 1964’s prohibition on discrimination “because of … sex” also prohibits discrimination based on sexual orientation or gender identity. The Bostock holding ends a lengthy legal battle waged throughout lower courts over the reach of the fifty-six year old Federal statute and effectively overrules all Federal decisions to the contrary.
Writing for the majority, Justice Neil Gorsuch explained that the plain meaning of the word “sex” in the context of Title VII prohibits an employer from taking adverse employment action against an employee because of the employee’s sexual orientation or gender identity. “An employer who fired 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 ....” The ruling also prohibits employers from creating a hostile work environment for employees because of their sexual orientation or gender identity. The extent to which Bostock applies to religious employers is unclear, as the Court left room to carve out religious-based exemptions.
What does this mean for employers? Many employers, regardless of Federal law, already have internal policies prohibiting discrimination based on sexual orientation or gender identity. Some implemented these policies by choice. Others did so to ensure compliance with mandates in state and local discrimination laws – such as in Philadelphia, New Jersey and New York – which have expressly prohibited discrimination based on sexual orientation or gender identity for many years. While some states, like Pennsylvania, have not enacted laws explicitly prohibiting sexual orientation or gender identity discrimination, the Bostock ruling means that all employers with fifteen or more employees must comply with and potentially defend claims under Title VII alleging discrimination based on sexual orientation or gender identity.
All employers should review their training, policies, practices, procedures, and handbooks to ensure prohibition of discrimination based on sexual orientation and gender identity is covered.
If you have questions about this Alert or actions your business should take to comply with this new ruling, please contact Jennifer Platzkere Snyder, Benjamin Teris, or any other member of our Labor & Employment Group.