TITLE VII COVERS ‘LGBTQ’ EMPLOYEES

Mary Moffatt

Attorney

Wimberly Lawson Wright Daves & Jones, PLLC

On Monday, June 15, 2020, the US Supreme Court issued its long-awaited opinion in Bostock v. Clayton County, Georgia (No. 17-1618), which included the related cases of Altitude Express v. Zarda and Harris Funeral Homes, Inc. v. EEOC. Each of these underlying cases raised the issue of whether Title VII of the Civil Rights Act of 1964 prohibits discrimination based on an employee’s sexual orientation or transgender status. In a 6-3 Opinion, the Court resolved a disagreement among the various courts of appeal by holding that the term “sex” in Title VII’s list of protected characteristics is indeed broad enough to include both sexual orientation and transgender status. In the Opinion, written by Justice Neil Gorsuch, the Court plainly stated: “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.” In short, the Court found that Title VII “prohibits all forms of discrimination because of sex, however they may manifest themselves or whatever other labels might attach to them.”

The Court noted that while employers have concerns that “sex-segregated bathrooms, locker rooms and dress codes will prove unsustainable,” or that this decision may impact employers’ “religious convictions,” such questions were not before the Court in these cases and thus, are “questions for future cases.”

Although over 20 states and many cities and counties already have laws prohibiting discrimination in public and private sector employment based on sexual orientation and/or gender identity status, today’s decision clarifies that federal law under Title VII also prohibits such discrimination. Based on the Court’s ruling, employers should review existing policies and practices to ensure compliance with the Court’s decision.