In a highly anticipated decision, the Supreme Court held on Monday, in Bostock v. Clayon, that employers are prohibited from discriminating against individuals who identify as gay, lesbian, or transgender. Six justices were in the majority, with three dissenting. Their opinions can be found here. This decision will have important ramifications for American employers and usher in change. Prior to this decision, it was legal to terminate an individual for being LGBTQ in approximately thirty states. This decision will broaden protections nationwide.
Neil Gorsuch, who was appointed to the bench by President Trump, wrote the opinion, cited Title VII of the Civil Rights Act as the basis of his rationale. Title VII prohibits employer discrimination on the basis of several protected categories, including sex. The facts of the cases brought before the Court were similar: three individuals were fired by long-term employers shortly after the employer learned of the employee’s sexual orientation or gender identity.
Gorsuch reasoned that firing an employee for being gay or being transgender is sex-based discrimination because it punishes behavior – for example, being attracted to men – that is accepted in some employees but not in others. If an employer accepts female employees being attracted to men, but does not accept male employees being attracted to men, then the employer is drawing an impermissible distinction on the basis of sex.
Gorsuch explained in his opinion that if an employee’s sex is a “but-for cause” of a decision to hire or fire, then this is considered sex-based discrimination under Title VII of the Civil Rights Act. Thus, if it factored into an employment decision, it is a censurable action.
Justice Alito, in a dissenting opinion, argued that the holding is an overreach because Title VII does not list “sexual orientation” or “gender identity” among the protected categories in the statute. He maintained that this wasa decision left to Congress and called the Court’s interpretation of Title VII a “brazen abuse of our authority.”
Bostock v. Clayton expands workplace protections for millions of Americans. Employers will need to ensure that their policies reflect these protections, that their organizational cultures reflect this new nationwide policy, and reinforce these protections in their ongoing training of employees and managers.