Supreme Court Rules that Title VII Protects LGBT Employees from Discrimination
For both employers (Title VII applies to employers of 15 or more) and affected employees, the impact of this decision will be far reaching. An employer discriminates when sex is a motivating factor in an adverse employment decision. It does not matter if other factors contributed to the decision or if the employer treated women as a group the same when compared to men as a group. That is, if the employee’s sexual orientation or transgender status is a motivating factor in the employer’s decision, the employer has violated federal law and can be sued for discrimination under Title VII. Notably, in Bostock, the employers admitted that the terminations were based on the employee’s homosexual or transgender status and proof of discriminatory intent was not at issue. That will likely be an issue in future cases as the Court emphasized Title VII also prohibits other potential forms of employment discrimination. As the Court put it, an employee’s sex is “not relevant to the selection, evaluation, or compensation of employees.”
The 6-justice majority rejected any public policy arguments regarding the possible future application of its decision. Questions regarding the segregation of other facilities and requirements based on sex (e.g., restrooms, locker rooms, dress codes) were not before the Court and the Court gave no indication as to whether other policies might or might not qualify as unlawful discrimination.
The Court also left open the question of whether religious organizations will be allowed to discriminate against LGBT individuals. The Court noted the Religious Freedom Restoration Act “might supersede Title VII’s commands in appropriate cases.”
The Court’s decision follows numerous other state laws and federal policies which already prohibit discrimination on the basis of sexual orientation and gender identity. Twenty-one states and the District of Columbia have enacted legislation providing for some form of anti-discrimination protection. Under Executive Order 13672, sexual orientation and gender identity are protected classes for purposes of federal contracting. Nonetheless, the decision is expected to have a big impact for many of the estimated 8.1 million LGBT workers in the U.S., and certainly for those who currently work in states that do not protect them from workplace discrimination. An estimated 11.3 million LGBT people live in the U.S., according to the Williams Institute at the UCLA School of Law. As Pete Williams, NBC’s Justice Correspondent, put it: “As of just a few minutes ago, it was possible to get married on Sunday and legally fired on Monday—but no more.”
Employers need to take immediate action to update policies, procedures, and training programs to ensure compliance with the expanded protection now available for LGBT employees under Title VII. Many employees who are federal contractors or who do business with federal contractors have already been complying with these policies, but it is time for all employers subject to Title VII to add gender identity and preference to employee handbooks and to train supervisors that discrimination against gay or transgender persons in the workplace is not legal or tolerable.
If you or your company need help in understanding or implementing the Supreme Court’s ruling, please contact the employment group at Ferguson Braswell Fraser Kubasta PC.