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Supreme Court Holds Employers May Not Discriminate Based on Sexual Orientation and Gender Identity Under Title VII

Emilie K. Vassar
6/23/20

columns on courthouse   On June 15, 2020, the U.S. Supreme Court issued a landmark decision in Bostock v. Clayton County, expanding protections for LGBTQ individuals in the workplace. In a 6-3 decision, the Court held that Title VII of the Civil Rights Act of 1964, which prohibits discrimination in the workplace based on sex, race, color, national origin and religion, also prohibits discrimination on the basis of sexual orientation and gender identity.

   The Court reasoned that the law, as written, prohibited discrimination based on sex. Discrimination based on sexual orientation and gender identity is inherently also based on sex, and thus clearly prohibited by the letter of the law. Justice Gorsuch, who wrote the opinion, stated: “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 different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”

   The Court made clear that sex-based discrimination is viewed expansively. Various Supreme Court opinions over the last decades have now held that, beyond mere gender, Title VII protects against discrimination and harassment that is sexual in nature, based on gender stereotypes, and now, sexual orientation and gender identity.

   Although the Court’s decision was sweeping with respect to Title VII, it left open the possibility that certain religious organizations might be eligible for an exemption from this Title VII protection, under the Religious Freedom Restoration Act (RFRA). That law, however, was not at issue in Bostock, and it is as yet unclear the extent to which RFRA may impact this new protection for LGTBQ employees.

   Prior to Bostock, employers in Ohio and Michigan already were prohibited from discriminating against transgender employees under Title VII, based on a Sixth Circuit Court opinion that was challenged in the trio of cases decided in Bostock. The further expansion of LGTBQ protections in the Bostock decision provides a good opportunity for employers to review and revise their equal employment opportunity and discrimination policies and training materials.

   If you would like assistance with your policies or training, or if you have questions about the Bostock decision or Title VII, please feel free to contact one of our Labor & Employment attorneys for guidance.

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Disclaimer:  The article in this publication has been prepared by Eastman & Smith Ltd. for informational purposes only and should not be considered legal advice. This information is not intended to create, and receipt of it does not constitute, an attorney/client relationship.