On June 15, 2020, the United States Supreme Court issued an opinion in Bostock v. Clayton County, Georgia holding that Title VII of the federal Civil Rights Act of 1964 prohibits firing an employee simply because the individual is gay or transgender.

The 6-3 opinion, written by Justice Gorsuch, held that discharging an employee based on either of these characteristics constitutes impermissible discrimination “because of” the employee’s sex, which is one of the specifically enumerated protected classes in Title VII (along with race, color, religion, and national origin). The opinion notes that these characteristics are “inextricably bound up with sex” such that discrimination based on an employee’s sexual orientation or gender identity means the employer inherently would be discriminating in part because of sex.

The opinion stressed certain “lessons” for employers relating to the enforcement of Title VII:

1. It is irrelevant what an employer calls/labels its discriminatory practice;
2. Employee’s sex need not be the sole or primary cause of the employer’s adverse employment action;
3. Employers cannot escape liability by demonstrating that it treats males and females comparably as groups if the underlying action violates Title VII (e.g., firing all employees, whether male or female, because they are transgender).

While 21 states and the District of Columbia already protect against both sexual orientation and gender identity discrimination, the Bostock decision provides uniformity across all states for employers subject to Title VII (15 or more employees).

This decision provides an opportunity for employers to:

• Reexamine policies, including handbooks, to ensure inclusion of language noting protection of sexual orientation and gender identity;
• Include sexual orientation and gender identity topics in employee trainings;
• Ensure that hiring practices do not discriminate against applicants based on sexual orientation or gender identity.

For questions regarding the impact of the Bostock opinion or about addressing sexual orientation or gender identity topics in the workplace, you may contact a member of our Labor & Employment Group.

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