Last month, the U.S. Supreme Court ruled in a surprise decision in Bostock v. Clayton County, Ga. that federal law protects workers from discrimination based on sexual orientation and gender identity.
In essence, the court found that discrimination based on sexual orientation or gender identity cannot be divorced from discrimination based on sex, which is specifically prohibited by Title VII of the Civil Rights Act of 1964. Justice Neil Gorsuch, who authored the majority opinion, wrote, “An individual’s homosexuality or transgender status is not relevant to employment decisions. That’s because it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”
What does this mean in practice?
An employer is prohibited from taking any employment action based on an employee’s sexual orientation or gender identity. For example, if an employer had fired a man for being insufficiently masculine and a woman for being insufficiently feminine, the employer might previously have argued that they were treating men and women as classes equally. This ruling now holds that such an action means, as the Society for Human Resource Management (SHRM) puts it, “Instead of avoiding Title VII exposure, this employer doubles it.”
What are the limitations of this ruling?
The ruling applies to employees rather than independent contractors. Further, Title VII does not apply to employers with fewer than 15 employees, though these small employers may still be liable under state and local anti-discrimination regulations.
Does this affect how employers will defend against accusations of discrimination?
In general, the ruling simply broadens the Title VII’s scope. Employers can still defend against discrimination claims by demonstrating nondiscriminatory justification for their actions. “As is the case generally with respect to Title VII, it is a best practice not only to be fair but to document employee-related decisions, furnish accurate evaluations, and maintain and publicize anti-discrimination policies,” David Garland, an attorney with Epstein Becker & Green in New York City, told SHRM.
What should employers do now?
Sexual orientation and gender identity should be added to any nondiscrimination policies and procedures. Employers should review their operational processes to ensure that LGBT employees are not treated differently from other employees. But for many employers with strong anti-discrimination programs already in place, this ruling won’t change very much.
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