Yesterday, the Supreme Court of the United States issued a landmark civil rights decision, in three cases that had been consolidated together — Bostock v. Clayton County, Georgia, Altitude Express, Inc. v. Zarda, and R.G & G.R. Harris Funeral Homes, Inc. v. EEOC. The Court held that Title VII of the Civil Rights Act’s mandate that employers cannot discriminate against employees “because of” sex, likewise prohibits discrimination against Lesbian, Gay, Bisexual, and Transgender (“LGBT”) employees in workplaces nationwide. The Supreme Court’s ruling resolves a split in the federal Circuit Courts of Appeal that was previously covered by HR Legalist.
Although some states and municipalities previously took up their own initiatives to protect LGBT employees via local discrimination laws and ordinances in the years leading up to this ruling, until yesterday, no such laws existed in over half the country (26 states). Now, however, protections for LGBT employees are unequivocally the law of the land.
The Majority Opinion, authored by Justice Neil Gorsuch and joined by five of the nine justices (6-3), held that discrimination on the basis of sexual orientation and gender identity is necessarily included within the umbrella of “because of” sex, as sex can never be truly divorced from either identity. One of Justice Gorsuch’s most poignant illustrations of how the Majority arrived at its ruling was his explanation of “but-for causation” for liability and the treatment of similarly situated individuals. Justice Gorsuch reasoned:
“Consider for example, an employer with 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 other 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. . . Or take an employer who fires a transgender person who was identified as a male at birth but who now identifies as a female. If the employer retains an otherwise identical employee who was identified as female at birth, the employer intentionally penalizes a person identified as male at birth for traits or actions that it tolerates in an employee identified as female at birth.”
Justice Gorsuch was careful to note that the only question before the Court was whether discrimination on the basis of sexual orientation or gender identity constituted discrimination because of sex in violation of Title VII, clarifying that whether other policies and practices constitute unlawful discrimination “are questions for future cases, not these.” Justice Alito’s Dissent cautioned that “[o]ver 100 federal statutes prohibit discrimination because of sex,” and therefore, it would be very difficult to distinguish the holding of this set of consolidated cases in Bostock when interpreting other similar statutes, such as the Fair Housing Act, Title IX of the Education Amendments Act, and the Affordable Care Act, among others.
Practically speaking, following from this decision, there are a number of things employers should do as soon as possible.
First, employers should review and revise their Employee Handbook and other written policies to include prohibitions on discrimination and harassment on the basis of sexual orientation and gender identity—if such protections weren’t already included. While not required, it would also be advisable to revise policies, procedures, and job descriptions to make them gender neutral (ex. She/he → they/them).
Second, employers should also begin providing notification and/or training to employees regarding discrimination and harassment on these bases.
Third, employers should implement a forward-thinking approach to risk avoidance and mitigation. For example, we foresee an increase in potential litigation over “misgendering.” Misgendering is the act of either intentionally or inadvertently using language to describe a person that doesn’t align with their affirmed gender. In light of yesterday’s Supreme Court decision, it should be obvious that repeatedly referring to a transgender woman, for instance, using male pronouns (e.g. he/his/him), could be the genesis of a claim for discrimination or harassment on the basis of her gender identity. However, some individuals do not identify as male or female, and instead identify as non-binary, gender-nonconforming, or genderqueer, among other identities.
For example, in December 2019, a lawsuit was filed in Oregon state court against Nike by an employee, Jazz Lyles, who identifies as “transmaculine/nonbinary.” Lyles informed Nike that they are transgender and asked to be referred to by the pronouns “they/them/their.” However, Lyles alleges that their peers repeatedly misgendered them and “[b]ecause Nike had no policies in place, the burden was improperly placed on plaintiff to educate their coworkers about the importance of using proper gender pronouns in the workplace and the serious harms of misgendering.” While this case is still in litigation, employers would be well-advised to get ahead of possible exposure like this, and provide training for their employees concerning discrimination and harassment on the basis of sexual orientation and gender identity, including an explanation of gender identity and sexual orientation, the different types of identities and the proper use of pronouns.
Finally, while today’s decision is certainly a win for LGBT individuals nationwide, it is important to bear in mind that Title VII’s protections are limited in scope. Title VII does not apply to employers with less than 15 employees. Also, Title VII only protects traditional employees— thus persons acting in capacities such an independent contractors are not covered by its reach, nor are other instances of possible sexual orientation/gender identity discrimination that occur outside of an employment relationship (i.e., housing, healthcare, public accommodations, etc.).