To the surprise of some observers, the U.S. Supreme Court released its landmark Bostock v. Clayton County decision Monday morning, holding by a 6-3 vote that the approximately 8.1 million employees who self-identify as LGBTQ+ may not be discriminated against in the workplace on the basis of their sexual orientation or gender identity. Undoubtedly the Court’s most significant civil rights decision since extending marriage rights to same-sex couples in 2015, Bostock resolves a split among lower courts regarding the breadth of protection afforded by federal employment law.
Title VII of the Civil Rights Act of 1964 makes it unlawful for employers to discriminate against any individual “because of such individual’s race, color, religion, sex, or national origin.” Although sexual orientation and gender identity aren’t expressly listed among these protected classes, today’s decision affirms that these types of discrimination are nonetheless prohibited by Title VII as subsets of sex discrimination. Justice Neil Gorsuch, writing for the majority, reasoned that a male employee who is fired for being attracted to men has been discriminated against on the basis of sex, since a woman who exhibited the same attraction to men would not be fired for doing so. Likewise, an employee who was assigned female at birth but who now identifies as male is the object of sex-based discrimination if treated less favorably than an otherwise identical employee who retains her female identity.
This decision does leave several pertinent questions unanswered. Indeed, future litigation involving such issues as segregated bathrooms, dress codes, and employers with sincere, religious objections seems imminent. Notwithstanding these lingering concerns, however, today’s decision is a significant step toward universal civil rights that should be welcomed by those employers (our firm included) who view diversity and inclusiveness as necessary components of a healthy workplace culture. It also largely resolves a patchwork of state and local protections that have been instituted nationwide, with growing frequency over the last decade.
We encourage you to reach out to any of our professionals with questions about today’s decision, employee relations, or workplace diversity in general. Happy Pride Month from K|W|W – your workforce is our priority.
The K|W|W Team