US Supreme Court Rules – Federal Law Protects LGBTQ at Work

On Monday, June 15, 2020, by a vote of 6-3, and for the third time since 2003, the Supreme Court ruled that existing Federal law forbids job discrimination on the basis of sexual orientation or transgender status. And, this time, by applying the workplace protections inscribed in the 1964 Civil Rights Act to gay and transgender employees. The ruling takes effect immediately. This action is a major victory for advocates of gay rights and for the emerging transgender rights movement.
Previously, the Supreme Court addressed this matter on October 8, 2019, at which time they were closely divided after hearing two (2) hours of courtroom arguments on the important issues of the term – whether existing Federal law forbids job discrimination on the basis of sexual orientation. The Court was to decide whether Title VII of the Civil Rights Act of 1964, which makes it illegal for employers to discriminate because of a person’s sex (among other protections – see below), also covers sexual orientation and transgender status. One case was presented on behalf of Gerald Bostock, who was fired from a county job in the state of Georgia after he joined a gay softball team. An attorney argued the employer discriminated against the man because it treated him worse than women who were doing the same work and the discrimination was because of sex. It was further explained that when an employer fires a male employee for dating men, but does not fire a female employee who dates men, the employer violates Title VII of the Civil Rights Act.
Per Title VII of the Civil Rights Act of 1964, it is unlawful for an employer to discriminate against employees and job applicants on the basis of race, sex, color, religion or national origin. Specifically, all companies with fifteen (15) or more employees are required to adhere to the rules set forth by Title VII of the Civil Rights Act. An employer violates Title VII when it intentionally fires (or refuses to hire) an individual based in part on sex. It is irrelevant if other factors, aside from the individual’s sex, contribute to the employer’s decision. This is because it is a Title VII violation if an employer intentionally relies in part on an individual’s sex when taking negative employment action against them.
In Bostock, the Georgia case, the court held that because discrimination on the basis of homosexuality or transgender status requires an employer to intentionally treat individuals differently because of their sex, an employer who intentionally penalizes an individual for being homosexual or transgender also violates Title VII.
The Supreme Court said Title VII of the Civil Rights Act of 1964 also covers sexual orientation and transgender status. They upheld rulings from lower courts that said sexual orientation discrimination was a form of sex discrimination.
The Supreme Court also provided firm clarification and guidance regarding the following:

• It’s considered irrelevant what an employer might call its discriminatory practice, how others might label it, or what else might motivate it. When an employer fires an employee for being homosexual or transgendered, it intentionally discriminates against that individual in part because of sex.
• An individual’s sex does not need to be the sole or primary cause of the employer’s adverse action. It’s of no significance if another factor, such as an individual’s attraction to the same sex or presentation as a different sex from the one assigned at birth, might also be at work, or even play a more important role in the employer’s decision.
• Employers cannot escape liability by demonstrating how it treats males and females comparably as a group. An employer who intentionally fires a homosexual or transgender employee in part because of their sex violates the law even if the employer is willing to subject all male and female homosexual or transgender employees to the same rule.

Across the United States, we now have twenty-two (22) states that have passed their own laws which prohibit job discrimination based on sexual orientation or gender identity. In addition, there are seven (7) states that provide protection only to public employees. Those laws will continue to remain in force. However, with Monday’s ruling, Federal law now provides similar protections for LGBTQ employees throughout the rest of the United States.
Gay rights advocates celebrated the ruling as gay and transgender rights groups considered the case and outcome a major victory. Many describe this ruling as more important than the fight for the right to marry, as nearly all LGBTQ adults have or need employment. The groups also acknowledged that sexual orientation was not on the minds of anyone in Congress when the Civil Rights Law was first passed.
Also, on June 15, 2020, the Society for Human Resource Management (SHRM) issued the following statement: “SHRM applauds the U.S. Supreme Court today for its ruling making clear employment discrimination on the basis of an employee’s sexual orientation or gender identity is illegal. The ruling provides much needed clarity and finality on the interpretation of Title VII’s protections from the Court giving HR professionals clear guidance and a greater opportunity to create a world of work that works for all.”
So, you may be asking – how does this impact my company or my employer?
Human Resources Compliance is now more important than ever!
It’s time to:

• Review and update your employee handbooks
• Review and update your policies and procedures (e.g., hiring and termination)
• Update your employment law posters
• Train your HR professionals, managers and employees in all aspects of HR compliance, sensitivity, civility in the workplace, and diversity and inclusion

And when in doubt, contact your AssuredPartners Human Resources Consultant and/or legal advisor.
Resources:

• Title VII of the Civil Rights Act of 1964
• Bostock v. Clayton County, Georgia