As predicted during our Employment Law seminar held in February of this year, the United States Supreme Court has issued a landmark decision protecting lesbian, gay, bisexual, and transgender also known as LGBT employees. The Court recently took on a trio of cases to render a clear determination as to whether sexual orientation and gender identity are protected categories under Title VII of the Civil Rights Act of 1964 (“Title VII”). Through Bostock v. Clayton County, the Court has interpreted that the statute – which prohibits employment discrimination on the basis of sex – also prohibits discrimination on the basis of sexual orientation and gender identity.
The Court heavily focused on the statute’s text to reach its determination. Title VII makes it “unlawful for an employer to fail or refuse to hire or discharge any individual, or otherwise discriminate against any individual, because of such individual’s sex.” Delivering the Court’s 6-3 opinion, Justice Neil Gorsuch wrote, “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 a different sex. Sex plays a necessary and undisguisable role in the decision; exactly what Title VII forbids.”
So, what does this mean for employers?
Employers should ensure that their training materials and policies – including their equal employment opportunity, harassment, and discrimination policies – include sexual orientation and gender identity as protected categories. In addition to these policy matters, employers should take proactive steps to prevent and prohibit discrimination on the basis of sexual orientation or gender identity in the workplace. Employers should communicate the developments in the law to key decision makers within the company to ensure that they are aware that LGBT emloyees are protected categories and cannot be the lawful basis of any employment decisions.