By: Attorney David W. Anderson & Attorney Joye Beth Spinks
English, Lucas, Priest & Owsley
In a far reaching opinion handed down on June 15, 2020, the U.S. Supreme Court held that employers may not discriminate against LGBTQ+ individuals because of their sexual orientation or gender identity in Bostock v. Clayton County, Georgia.
This issue was brought to the Supreme Court by three plaintiffs who were all terminated from their jobs because of their sexual orientation or gender identity:
- Gerald Bostock, a child welfare coordinator for Clayton County, Georgia, who was fired after he joined a gay recreational softball league;
- Donald Zarda, a skydiving instructor who was fired after revealing he was gay; and
- Aimee Stephens, a funeral director who was fired two weeks after she informed her boss she was transgender and would be coming to work expressing her identity as a woman.
Justice Gorsuch and Chief Justice Roberts joined the four Justices viewed as more liberal in the 6-3 opinion written by Justice Gorsuch. The Court held, quite simply, that it is unlawful under Title VII of the Civil Rights Act of 1964 for an employer to discriminate against LGBTQ+ individuals because of their status as such. The Court reached this conclusion by reasoning that Title VII prohibits employers from discriminating against employees and potential employees on the basis of sex, and discrimination on the basis of LGBTQ+ status is discrimination on the basis of sex.
Some of the subsidiary rules that have been developed in cases involving discrimination on other bases (race, color, religion, and national origin) which result from the Court’s ruling are:
- An employer violates Title VII if an employee is discriminated against because, in part, of the employee’s LGBTQ+ status. It does not matter that there also existed a legitimate reason for the adverse employment action against the individual – so long as the employee’s LGBTQ+ status was one of the reasons for discrimination, there is a violation of Title VII.
- An employer fails or refuses to hire, discharges, or otherwise discriminates against an LGBTQ+ individual. Discrimination can take many forms in addition to the obvious refusal to hire or discharge of a LGBTQ+ employee, such as differences in compensation, differences in work assignments, differences in fringe benefits, etc.
Bostock creates an anti-discrimination law applicable in the entire United States. Although some states previously had such provisions, 26 states, including Kentucky, did not have laws protecting LGBTQ+ workers from discrimination at work. Bostock thus creates protection for LGBTQ+ individuals where none existed before.
It is to be noted that the Court’s decision affects only employers – it is not applicable to discrimination by other persons and entities, such as hotels/motels, businesses open to the public, banking and lending, etc., which is prohibited by another Federal statute, 42 U.S.C. § 2000a.
The Bostock decision creates many additional considerations for employers and employees. Employers should do a timely review of their handbooks and relevant policies and procedures to ensure that they are in line with this decision. Employers should be aware of the potential for additional charges of discrimination and lawsuits. Further, given the national conversations happening surrounding inequality throughout the country, employers may also see the timing of this decision as an opportunity to check in with and educate their employees on acknowledging differences in the workplace and treating each other with dignity and respect.
English, Lucas, Priest & Owsley stays abreast of developments in the law and is here to assist anyone with questions or claims related to this decision. Contact us by phone at 270-781-6500 or by e-mail at email@example.com.