What The Supreme Court LGBTQ Ruling Means For Employers

By Candace E. Johnson, Attorney

On Monday, June 15, 2020, the United States Supreme Court issued a historic 6-3 ruling that the 1964 Civil Rights Act safeguards employees from discrimination based on sexual orientation or gender identity. Before the decision, in more than half of the states, LGBTQ people could get married but risk getting fired from their job for failing to conform to traditional norms and stereotypes for their gender.

Title VII, the specific section of the Civil Rights Act that addresses employment discrimination, protects employees against discrimination based on race, color, national origin, sex, and religion. The ruling in Bostock v. Clayton County means that Title VII now also explicitly prohibits discrimination against workers because of their sexual orientation or gender identity.

By holding that Title VII protects workers from discrimination at the crossroads of more than one identity—gender, sexual orientation, and transgender status—the Court recognized that multiple intersecting factors may lead to discrimination. The ruling recognizes new worker protections in federal law.

Employers should take note.

What does this decision mean for employers?

The Bostock decision gives a clearer definition of “sex” in Title VII and clarifies that discriminating against gay and transgender workers is inherently illegal based on their sex. According to the ruling, “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,” Justice Gorsuch wrote; therefore, “sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”

While many employers were already prohibited from such discrimination by virtue of state laws, to the extent an employee was not, they should heed this recent decision and change their employment practices accordingly.

Employers should educate their workforce and revamp their policies to ensure that employment decisions are not based on sexual orientation or gender identity, including recruiting, hiring, promoting, transferring, training, disciplining, discharging, assigning work, measure performance, or providing benefits.

What to expect next:

The Court’s decision raises serious questions about the freedom of religious organizations and schools to continue their faith-based employment practices. As of now, these employers can still mount religious-based defenses under the Religious Freedom Restoration Act. However, the Court will likely decide this controversial issue in the next term.

Candace E. Johnson is an attorney at Carmody MacDonald in St. Louis where she focuses her practice on employment law and civil litigation. If you have questions about how the Supreme Court’s decision affects your employment practices, contact Candace at [email protected] or 314-854-8647.

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