On Monday of this week, a divided U.S. Supreme Court decided a landmark employment law case. In Bostock v. Clayton County, Georgia, the U.S. Supreme Court found that Title VII of the Civil Rights Act of 1964, which prohibits sex discrimination in employment, includes sexual orientation and gender identity. Title VII applies to employers with 15 or more employees in 20 or more calendar weeks in the current or preceding calendar year. Title VII prohibits discriminating against an individual with respect to employment decisions, compensation, terms, conditions, or privileges of employment because of an individual’s race, color, religion, sex, or national origin.
Bostock unified the differing lower circuits by holding that terminating an individual for being gay or transgender is a violation of Title VII. The Court stated:
An employer violates Title VII when it intentionally fires an individual employee based in part on sex. It makes no difference if other factors besides the plaintiff’s sex contributed to the decision or that the employer treated women as a group the same when compared to men as a group. A statutory violation occurs if an employer intentionally relies in part on an individual’s sex when deciding to discharge the employee. Because discrimination on the basis of homosexuality or transgender status requires an employer to intentionally treat individual employees differently because of their sex, an employer intentionally penalizes an employee for being homosexual or transgender also violates Title VII.
As the bottom line for employers, “An individual’s homosexuality or transgender status is not relevant to employment decisions.” For employers, best practices include:
- Reviewing and updating discrimination and harassment policies to clarify that harassment and/or discrimination based on an individual’s sexual orientation or gender identity is prohibited.
- Educating employees on their rights and obligations with respect to prohibited discrimination and harassment. Employees should be encouraged to report good faith complaints of violations so that they can be investigated and remedial action taken if necessary. Retaliation is prohibited.
- Educating supervisors and managers so that they 1) do not violate the law and 2) report known or suspected discrimination or harassment so that it can be investigated and unlawful discrimination or harassment stopped. Employers have a duty to investigate.
If your business has questions or needs assistance with updating policies/procedures or conducting training, please contact Shannon at shannon.middleton@gutweinlaw.com or Karen at karen.young@gutweinlaw.com. We are here to help you!
