Posted on

US SUPREME COURT: SEXUAL ORIENTATION AND GENDER IDENTITY NOW PROTECTED CLASSES

US Supreme Court: Sexual Orientation and Gender Identity
are protected classes under Title VII of the Civil Rights Act

On June 15, 2020, the United States Supreme Court held in the case of Bostock v. Clayton County, Georgia that sexual orientation and gender identity are protected classes under Title VII of the Civil Rights Act of 1964.
The Court’s opinion actually arises from three separate cases: (a) Zarda v. Altitude Express, (2) Bostock v. Clayton County, Georgia, and (3) EEOC/Stephens v. R.G. & G.R. Funeral Homes. In each of the cases, the plaintiffs claimed they were fired in violation of Title VII of the Civil Rights Act of 1964. In the Zarda case, the United States Court of Appeals for the Second Circuit held that Title VII prohibits discrimination based on sexual orientation. In the EEOC/Stephens and Bostock cases, the Sixth and Eleventh Circuit Courts of Appeal came to the opposite conclusion, finding that Title VII of the Civil Rights Act did not prohibit employers from discriminating against employees on the basis of their gender identity (EEOC/Stephens) or their sexual orientation (Bostock). Ultimately, the Supreme Court sided with the Second Circuit and held that sexual orientation and gender identity were protected classes under Title VII.
How did the Court come to this decision?
The Court determined that sexual orientation and gender identity are protected classes under Title VII of the Civil Rights Act of 1964. Title VII makes it “unlawful . . . for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual . . . because of such individual’s race, color, religion, sex, or national origin.” 42 U. S. C. §2000e–2(a)(1). The Court found that the term “sex” in 1964 only referred to the biological distinctions between male and female; however, because discrimination on the basis of a person’s homosexuality or transgender status requires an employer to intentionally treat individual employees differently because of their sex, an employer who intentionally penalizes an employee for being homosexual or transgender violates Title VII. The Court reasoned that when an employer fires an employee “for being homosexual or transgender,” that employer “fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”
What are the practical consequences for an employer?
This decision immediately provides legal protections to an employee’s sexual orientation and gender orientation or expression under federal law. Employers may now face Title VII liability for adverse employment actions where the motivating factor behind such a decision is the employee’s status as a transgender or homosexual person.
How does it affect me as an employer?
To the extent they do not already, Employers should immediately update their EEO policies to cover both sexual orientation and gender identity. Employment policies that delineate protected categories, especially the primary non-discrimination or equal opportunity policy, should now include the terms, “sexual orientation” and “gender identity or expression” or “gender identity.” Additionally, employers should modify their employee training and orientation programs to adequately reflect this significant change in the law.

The impact of this decision, and the potential impacts on your business will be ever changing over the next few weeks and month(s). This document is not meant to be exhaustive, but only a primer on certain issues which may affect employers. If you have questions about implementing a policy or a specific situation which arises in your workplace, please call the lawyers at Fox Smith, LLC at 314-588-7000 or by email at rkorn@foxsmithlaw.com or pcosgrove@foxsmithlaw.com.