In Bostock v. Clayton, the Court stated that employment decisions motivated by an individual’s sexual orientation and/or gender identity are “exactly what Title VII forbids” by prohibiting sex discrimination. The Court reasoned that “sex plays a necessary and undisguisable role” in such decisions because “changing the employee’s sex would have yielded a different choice by the employer”.
The Court explicitly rejected an argument that employment actions based on an employee’s gender identity or sexual orientation does not violate Title VII if the employer’s “ultimate goal” is not to discriminate against an employee based on sex. The opinion unequivocally endorses a broad interpretation of Title VII and thus the employment protections available to members of the LGBTQ community. The 6-3 decision authored by Justice Gorsuch resolved a split in the federal circuit courts of appeal concerning whether to extend Title VII protections to LGBTQ persons nationwide.
The decision has important implications for employers. To comply with federal law, all employers with 15 or more employees must now provide LGBTQ employees with the same employment protections as other protected classes. Certain states and municipalities have already included an employee’s “sexual orientation” among classes protected by corresponding state and local anti-discrimination laws. For the first time, the Bostock decision extends such protections at the federal level and thus expands these protections nationwide.
Bostock raises a series of questions concerning the application of Title VII to certain hot-button issues. Specifically, the Supreme Court expressly declined to decide whether claims for discrimination on the basis of sexual orientation or gender identity can be predicated upon policies and practices surrounding bathrooms and locker rooms. The Court noted potential conflicts with, but did not address, the Religious Freedom Restoration Act which “might supersede Title VII’s commands in appropriate cases.”
Employers should ensure that decisions concerning LGBTQ employees, including hiring, firing, compensation, and promotion decisions, are not discriminatory, just as employers currently must avoid discrimination on the basis of age, disability, national origin, race, religion, and sex. Moreover, employers should promptly review and update their handbooks, policies, and procedures, and particularly anti-discrimination and anti-retaliation policies, to include express prohibitions on discrimination and retaliation against members of the LGBTQ community.
Klehr Harrison’s labor and employment practice group can assist employers with any questions that arise and to perform such a review and update.