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LGBTQ+ Victory: Considerations for Employers After Supreme Court Holds that Title VII Prohibits Discrimination on the Basis of Sexual Orientation and Gender Identity



On June 15, 2020, the United States Supreme Court determined that Title VII of the Civil Rights Act of 1964 ("Title VII") prohibits discrimination against gay and transgender employees. The case, Bostock v. Clayton County, can be found here.

The Court resolved three cases that were consolidated for review:

  • Bostock v. Clayton County (11th Cir): Gerald Bostock, a child welfare advocate, was discharged for "conduct unbecoming a county employee" after he joined a gay softball team and community members made disparaging comments about his sexual orientation.
  • Zarda v. Altitude Express, Inc. (2d Cir): Donald Zarda, a skydiving instructor, was fired days after he mentioned that he was gay.
  • EEOC v. R.G. & G.R. Harris Funeral Homes, Inc. (6th Cir) ("Stephens"): Aimee Stephens presented as male when she began working for a funeral home. Six years into her employment, she notified her employer that she planned to "live and work full-time as a woman" after she returned from an upcoming vacation. Her employer discharged her, stating that "this is not going to work out."

All three cases involved the question whether the employers' conduct violated Title VII, which prohibits discrimination on the basis of sex. But the three appeals courts reached different conclusions. The Bostock court concluded that Title VII does not protect gay employees, whereas the Zarda and Stephens courts concluded that Title VII protects gay and transgender employees.

Today, the Court determined that Title VII's prohibition on discrimination "because of sex" protects employees against employment discrimination on the basis of their gay or transgender status. The case was decided 6-3—Justice Neil Gorsuch authored the majority opinion in which Chief Justice Roberts and Justices Ginsburg, Breyer, Sotomayor, and Kagan joined.

What steps should employers consider in light of the Court's ruling?
Several states—including Oregon, Washington, and California—already have statutes that prohibit employers from discriminating against employees on the basis of their sexual orientation or gender identity, so the Bostock decision will not drastically alter the legal landscape in those states. But the Court's decision highlights issues for employers to consider, including:

Review policies and practices to ensure compliance with the Court's ruling.
In Stephens, the employer provided male public-facing employees with clothing that complied with its dress code, but did not provide clothing for similarly-situated female employees. The Sixth Circuit determined that the EEOC could proceed with its Title VII claim on this issue.

Although the Court expressly declined to extend today's ruling to address "sex-segregated bathrooms, locker rooms, [or] dress codes," which were not at issue in any of the three cases on review, employers should review their policies and practices to identify those that potentially implicate Title VII's prohibition on discrimination on the basis of sex, sexual orientation, or gender identity.

Conduct regular trainings regarding sex-based discrimination, including discrimination based on sexual orientation and gender identity.
Regularly reminding managers, human-resources personnel, and other employees of unlawful employment practices is one of the best ways to reduce potential legal risk. Employers should take proactive steps to assure employees that discrimination based on sex, sexual orientation, and gender identity will not be tolerated, educate employees on what discrimination based on sex, sexual orientation, and gender identity can look like, and ensure that employees know how and where to report potential discrimination.

Some areas for proactive training include use of appropriate names and pronouns and how implicit biases can manifest in the workplace. Employers who address these issues before employees raise a concern or announce a gender transition will be better positioned to prevent discrimination and address any legal claims that may arise.

Review compensation and employment practices to ensure compliance with Title VII.
The three cases considered by the Court involved discharge, but the Court's rationale extends to other types of disparate treatment, including compensating gay or transgender employees less than their heterosexual or cisgender counterparts. Employers should review their compensation and promotion practices to eliminate any implicit or explicit bias against employees on the basis of their sex, sexual orientation, or gender identity, and correct any discrepancies that do not appear to have a legitimate nondiscriminatory justification.

If you have questions about these issues or any other federal or state discrimination laws, please contact an attorney on Miller Nash Graham & Dunn's Employment Law and Labor Relations Team.

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