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Insight U.S. Supreme Court Extends Title VII Protections to Sexual Orientation and Transgender Status

By Benjamin C. Ritchie, John Ashby,

On June 15, 2020, the United States Supreme Court ruled that federal law prohibiting discrimination on the basis of “sex” will now include protections for individuals on the basis of sexual orientation, transgender, and gender identity.  In Bostock v. Clayton County, Georgia, Justice Gorsuch wrote the 6-3 majority opinion, stating:  “In Title VII, Congress adopted broad language making it illegal for an employer to rely on an employee’s sex when deciding to fire that employee…We do not hesitate to recognize today a necessary consequence of that legislative choice: an employer who fires an individual merely for being gay or transgender defies the law.”

In Bostock, the Court considered three cases that presented similar legal issues under Title VII: “an employer fired a long-time employee shortly after the employee revealed that he or she is homosexual or transgender–and allegedly for no reason other than the employee’s homosexuality or transgender status.” One involved an award-winning employee of a Georgia county who was fired shortly after joining a gay recreational softball league. Another employee, a skydiving instructor in New York, mentioned to a customer that he was gay and was fired days later. A third employee, a worker at a funeral home in Michigan, was hired as a man but six years later informed her employer that she planned to live as a woman after being clinically diagnosed with gender dysphoria. The funeral home fired her, too.

The employers and supporting parties, including the U.S. Department of Justice, argued that Congress has repeatedly considered whether to include sexual orientation or gender identity under Title VII discrimination protections, but has declined to do so. The employees and their supporting parties, including a litany of large businesses such as Apple, Walt Disney, and Coca-Cola, argued that Title VII’s term “because of sex” includes sexual orientation or gender identity because that discrimination is occurring against individuals who are not conforming to conventional stereotypes of their “sex.” In their amicus brief with the Court, the large businesses argued that a change in Title VII interpretation would not be “unreasonably costly or burdensome,” and would provide “consistency and predictability” from state to state.

Justice Gorsuch wrote that the inclusion of sexual orientation and gender identity into Title VII would prohibit employers from failing to “hire or … discharge any individual, or otherwise…discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of” the individual’s sexual orientation or gender identity. All employers should take note that an “individual’s homosexuality or transgender status is not relevant to employment decisions.” Justice Gorsuch concluded that an employer violates Title VII if they consider the employee’s sex, sexual orientation, or gender identity in an employment decision, even if “other factors besides the plaintiff’s sex contributed to the decision.”

This decision is particularly important for Idaho employers because, unlike many other states, and despite prior efforts to “Add the Words,” Idaho had not previously extended workplace protections to employees based on sexual orientation or gender identity.

So what should employers do now?  First, employers should update their discrimination and harassment policies to specifically prohibit harassment or discrimination based on sexual orientation or sexual identity.  Second, employers may want to use this decision as an opportunity to conduct training for managers or other employees on compliance with anti-discrimination and harassment policies, including respectful workplace practices specific to LGBTQ employees.

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