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Legal Updates

Supreme Court Extends Title VII Protections To LGBTQ Employees

Last week, the U.S. Supreme Court issued its long-anticipated decision in Bostock v. Clayton County, holding that the main federal employment discrimination statute, Title VII of the Civil Rights Act of 1964, prohibits employers from discriminating against employees because of sexual orientation or transgender status.

In a 6-3 decision (authored by Justice Neil Gorsuch, a Trump appointee), the Court held that discrimination because of sexual orientation or transgender status constitutes discrimination because of “sex,” in violation of Title VII. The Court’s decision resolves a split among the federal courts of appeal on this issue and has immediate implications for employers across the nation, particularly those in jurisdictions in which sexual orientation and gender identity previously were not protected characteristics under state or local law.

Supreme Court’s Holding

Under the “ordinary public meaning” of Title VII, the Court held, an employer “necessarily” discriminates “because of sex” if it intentionally discharges, fails or refuses to hire, or otherwise discriminates against an employee due to that employee’s sexual orientation or transgender status. The majority reasoned that even if an employer takes other factors besides an employee’s own sex into consideration– such as the sex to which the employee is attracted, or the sex the employee presents as -- it is “impossible” to discriminate based on an employee’s sexual orientation or transgender status without also discriminating “because of” the employee’s sex, thereby making the employee’s sex a “but for” cause of the discrimination.

The majority also rejected the argument that an employer does not discriminate based on sex if it discriminates equally against gay male and gay female employees alike (or against both male transgender and female transgender employees), noting that Title VII focuses on protections for individuals, not classes. If the characteristic in question – being attracted to, or presenting as, a man or woman – would be tolerated if the employee in question were the opposite sex, reasoned the Court, the employer has discriminated against an individual “because of” his or her sex within the meaning of Title VII.

Justice Alito (joined by Justice Thomas) and Justice Kavanaugh filed dissenting opinions, accusing the majority of legislating from the bench and criticizing its reasoning as an overly literal interpretation of Title VII that conflicts with common parlance and legislative intent.

Implications for Employers

The Court’s Bostock decision has immediate implications for employers nationwide. Over half of the states currently do not have state laws prohibiting employment discrimination based on sexual orientation and transgender status, so the decision significantly alters the legal landscape in those states.

Even in states and municipalities in which such legal protections existed under local laws, the Court’s decision may expand employers’ potential liability by opening access to Title VII’s remedial scheme. In addition, the Court’s decision may well affect how sex discrimination provisions are interpreted under other federal and state laws applicable to employers and their health plans, such Title IX of the Education Amendments of 1972 and the Affordable Care Act.

The Court’s decision also may heighten the importance of exemptions that are intended to block Title VII and similar laws from interfering with employment decisions of religious organizations (including religious schools), or from otherwise requiring such organizations to violate their religious tenets. For instance, in its 2012 Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC decision, the Supreme Court held that Title VII and other employment discrimination laws cannot constitutionally be applied to “claims concerning the employment relationship between a religious institution and its ministers.”

Further, a federal statute known as the Religious Freedom Restoration Act requires that if a federal law imposes a substantial burden on the free exercise of religion, the government must show that the law furthers a compelling government interest and is the least restrictive means of doing so.

Finally, Title VII itself sets forth certain narrowly-applied exemptions for religious organizations and schools. Each or all of the above doctrines could, in certain circumstances, limit the application of Bostock to religious organizations.

The Supreme Court is poised to clarify at least some of those circumstances in two currently pending consolidated cases. In those cases, the Court has been asked to determine whether employees who perform “important religious functions” (in particular, teachers who provide religious instruction) qualify as “ministers” under the Hosanna-Tabor “ministerial exemption.” As noted by the dissenting Bostock justices, as of today, the bounds of these exemptions remain uncertain.

What Steps To Take Now

As a result of the Bostock decision, employers covered by Title VII should immediately review and update their equal employment opportunity statements, employment applications, nondiscrimination and harassment policies and procedures, and employee training materials to ensure that sexual orientation and gender identity are identified as protected classes.

Employers should also ensure that all managers and first-line supervisors are aware that discrimination based on sexual orientation or transgender status constitutes unlawful sex discrimination, and train them on identifying and avoiding such discrimination.

Finally, employers should review and revise their existing leave and other benefits policies to ensure compliance with the Court’s decision.

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If you have questions about the impact of the Bostock decision on your organization’s operations, please feel free to contact one of our experienced employment lawyers. We regularly counsel employers on the full gamut of discrimination issues and would be happy to help.