By a 6-3 majority, the United States Supreme Court held that Title VII’s prohibition against sex discrimination also prohibits discrimination against LGBTQ employees. Bostock v. Clayton County ended decades of debate over whether Title VII does, or does not, prohibit LGBTQ discrimination. It now clearly does.
The employers in this case argued that because Title VII does not expressly cover sexual orientation and gender identity discrimination, the law permits intentional discrimination against LGBTQ employees. The Supreme Court disagreed, concluding that Title VII’s prohibition against sex discrimination implicitly prohibits discrimination against LGBTQ employees. “It is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”
If you are having difficulty understanding how “sex” encompasses sexual orientation and gender identity discrimination, consider this example from the Court.
“[A]n employer [has] two employees, both of whom are attracted to men. The two individuals are, to the employer’s mind, materially identical in all respects, except that one is a man and the other a woman. If the employer fires the male employee for no reason other than the fact he is attracted to men, the employer discriminates against him for traits or actions it tolerates in his female colleague. Put differently, the employer intentionally singles out an employee to fire based in part on the employee’s sex, and the affected employee’s sex is a but-for cause of his discharge.”
Bostock is the most significant employment law decision in more than two decades. It might be that long or longer before we see another of this import.
What actions does Bostock require of your business?
1/ Review your employee handbook. If LGBTQ protections are not part of your EEO and anti-harassment policies, they now need to be.
2/ / Training on LGBTQ rights and protections is also necessary. It must be part of your annual anti-harassment training for all supervisors and employees.
3/ Bostock, in addition to the recent Black Lives Matter protests, illustrate the need to emphasize diversity and inclusion within all organizations. Your business should be prioritizing these issues through diversity and inclusion training for supervisors and employees, in addition to reinforcing the importance of diversity in company culture.
If you need assistance in implementing any of these action items, contact any of your Meyers, Roman employment lawyers, via email or at 216-831-0042: Managing Partner Seth Briskin (firstname.lastname@example.org); Partner Jon Hyman (email@example.com); or Lester Armstrong (firstname.lastname@example.org). To keep up to date on all employment law issues, visit our Ohio Employer Law Blog at www.ohioemployerlawblog.com.
This Legal Update is a summary only, prepared for general informational purposes, and is not an exhaustive description of the aforementioned matters or issues. Nothing in this Update is intended or is to constitute a legal opinion or legal advice by the authors or Meyers, Roman, Friedberg & Lewis.