What the SCOTUS ruling on LGBTQ rights means for employers
The U.S. Supreme Court issued a long-awaited ruling on LGBTQ employment rights on Monday, delivering a major victory to LGBTQ advocates.
The landmark 6-3 decision affirmed that discrimination based on sexual orientation and gender identity is considered sex discrimination, under Title VII of the Civil Rights Act of 1964. The court essentially ruled that private and public employers cannot hire, fire or promote LGBTQ individuals based solely on their LGBTQ status, a right that had long been granted to workers based on race, religion, sex, color and national origin.
The ruling came in Bostock v. Clayton County, a consolidation of three cases in which appellate judges differed on the matter of whether Title VII protected LGBTQ employees. Justice Neil Gorsuch, appointed by President Trump, wrote the opinion, which came as a surprise to many pundits; he was joined by swing vote Chief Justice John Roberts and the court’s four liberal justices.
“It turns out there were several swing votes on the Supreme Court after all,” says JoLynn Markison, a partner at international law firm Dorsey & Whitney, in its labor and employment practice.
While writing that treating a gay man differently than a straight man, or a transgender woman differently than a cisgender woman, qualifies as sex discrimination, Gorsuch also noted more broadly that an “individual’s homosexuality or transgender status is not relevant to employment decisions.”
Before this week’s decision, a patchwork of state and local laws had governed employment discrimination against LGBTQ people. Currently, 21 states and the District of Columbia prohibit LGBTQ discrimination in employment, housing and public accommodations; meanwhile, the Equal Employment Opportunity Commission has interpreted Title VII to apply to discrimination against LGBTQ people. In recent years, corporations were largely leading the way for LGBTQ equality; last year, a record number of companies publicly supported the re-introduction of the Equality Act, which would legislatively ban employment discrimination about LGBTQ people.
Now, it’s time for those that do not yet have such policies in writing to quickly get on board, says Markison.
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“If your employment policies do not currently provide for nondiscrimination based on sexual orientation and gender identity, you should update them to explicitly list those categories,” Markison advises. “While LGBTQ employees will now receive protection based on ‘sex’ regardless of employer policies, expanding your policy to include protections for sexual orientation and gender identity is not only the right thing to do, but it will provide evidence that your company intends to comply with Title VII’s protection of ‘sex’ in its totality.”
The nondiscrimination laws in the state in which an employer operates is no longer relevant when it comes to LGBTQ discrimination, notes Elaine Turner, shareholder and partner at national law firm Hall Estill.
“Regardless of contrary state laws,” she says, “such employers may not discriminate against individuals in employment decisions because they are gay or transgender. Those that do, violate Title VII and are subject to legal actions against them that could be very costly.”
The SCOTUS ruling comes just days after Trump rolled back Obama-era mandates that prohibited healthcare discrimination against transgender Americans. In the wake of that move, Markison says, “the LGBTQ community needed a win, and this is it.”
Scott Cawood, CEO of WorldatWork, noted there are an estimated 8 million LGBTQ American workers, and said the decision comes at a pivotal time in American history, as tensions over racial and social inequalities are high.
“This sends a very clear message that personal attributes such as sexual orientation and gender identity should never be used in employment related decisions,” Cawood says. “There are numerous elements that impact performance, but being gay, lesbian or transgender aren’t among them.”
In a statement released by the Human Rights Campaign, named plaintiff Gerald Bostock, who was fired in 2013 from a child-welfare organization, said he was “elated” at the ruling.
“This fight became about so much more than me,” he said. “Today, we can go to work without the fear of being fired for who we are and who we love. Yet, there is more work to be done. Discrimination has no place in this world, and I will not rest until we have equal rights for all.”