Bottom line: An employer who fires an individual merely for being gay or transgender violates Title VII.
On May 15, 2020, the US Supreme Court ruled that the prohibitions against discrimination “because of sex” contained in Title VII of the Civil Rights Act of 1964 extend to protect gay and transgender employees against workplace discrimination.
This much-anticipated decision (Bostock v. Clayton County)[i] consolidated three cases with inconsistent rulings. In a 6-3 ruling, the Supreme Court answered “no” to the following question:
Is it legally permissible under Title VII’s language prohibiting discrimination “because of sex” for an employer to take an adverse action against an employee merely because the employee is gay or transgender?
The majority decision was written by Justice Gorsuch – President Trump’s recent nominee – which surprised many. Justice Gorsuch and Chief Justice Roberts sided with the court’s four Democratic appointees. Justice Gorsuch was expected to represent the interests of conservatives and constitutional “textualists” and “originalists” (who do not believe the law as written should evolve with the times).
Title VII Was Passed in 1964 – Why the Debate Now?
Title VII does not specifically mention the ground of sexual orientation or gender identity. It makes it “unlawful… to discriminate against any individual…because of such individual’s race, color, religion, sex, or national origin.”
The EEOC (federal) and some lower courts have held that the ground of “sex” does include sexual orientation and gender identity. But with competing decisions, the Supreme Court clarified things. The court examined the meaning of the word “sex” in Title VII.
Justice Gorsuch wrote the decision for the majority, finding that: “homosexuality and transgender status are inextricably bound up with sex… it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”
The US Supreme Court has now spoken: Title VII prohibition against discrimination on the basis of “sex” encompasses sexual orientation and gender identity. This brings Title VII protections in line with the many state and local laws that already prohibit discrimination on the basis of sexual orientation and gender identity.
Wasn’t This Kind of Discrimination Already Banned?
Nearly half the states (and many cities) in the US already prohibit discrimination and harassment on the basis of sexual orientation and gender identity.[ii]
Therefore, this decision will most profoundly affect the states that to date have not had these protections for employees.[iii] There is no longer a gap in the law for LGBTQ+ Americans living in those jurisdictions.
The Supreme Court’s ruling means that LGBTQ+ employees across the United States – in every jurisdiction – have protection from discrimination. The decision is of great symbolic importance in the US and other countries around the world.
What Does the Court’s Decision Mean for Employers?
Employers may be liable at law if they ignore signs and complaints of harassment, or do not make best efforts to provide a safe workplace. Consider the following:
- Do your corporate policies and procedures reflect that discrimination and harassment based on sexual orientation and gender identity are prohibited in the workplace? If not, then get working! Your policies need to state that allegations of discrimination on this basis will be investigated – just as for race, religion, and sex – and that there will be disciplinary action for violations.
- Training is a must. Sending your policy around to employees is not enough. Sexual harassment prevention training that is engaging, current and interactive will signal from the top down that discrimination is not tolerated. Given COVID-19 practices, eLearning is the safest and most efficient solution. Training designed for your region (ie. California, New York, Ontario) customizes the learning to meet compliance requirements.
- Be Prepared for Litigation. People (in all states) who allege discrimination in the workplace based on sexual orientation or gender identity will be able to file lawsuits, just as employees claiming race and sex discrimination are entitled to do. Work hard to prevent discrimination from occurring in the first place.
So Sexual Orientation & Gender Identity Should Be Covered in Our Sexual Harassment Training?
Yes! Now in virtually all North American workplaces,[iv] employees are protected from discrimination and harassment on the basis of sex, sexual orientation, gender identity and (in some areas) gender expression.
Employees need to know how to identify these forms of discrimination, and what to do if they experience, or are a bystander to, this type of harassment.
If your employees are located in New York (state and NYC), California, and Ontario, Canada, note that the laws already require workplace training on sexual harassment – including sexual orientation and gender identity.
How Does Sexual Orientation & Gender Identity Harassment Play Out?
Anyone (men, women and transgender/ gender non-conforming persons) can be a target of harassment.
A failure to hire or promote LGBTQ+ people, or over-scrutinizing LGBTQ+ employees because of their sexual orientation and/ or gender identity is prohibited. Demeaning, humiliating conduct or remarks based on a person’s gender identity (eg. whether someone conforms to gender “norms”) or sexual orientation threatens a safe, respectful workplace culture.
Sexually oriented gestures, noises, remarks or jokes, or comments about a person’s sexuality or sexual experience are not appropriate in the workplace and create a hostile work environment. Sending sexualized messages or images to colleagues violates workplace policies as well.
Consider that there can be intersectionality in workplace harassment. For example, an employee might be targeted on more than one ground of discrimination eg. a transgendered African-American woman (race and gender identity), or a gay man with a physical disability (sexual orientation and disability).
Our Workforce is Working Remotely Due to COVID-19 – Do We Still Need to Deal With This?
Yes! Unlawful harassment is not limited to the physical workplace. With remote work and communication between colleagues during “non-work hours,” incidents can occur away from the “actual” workplace. (This is particularly relevant given that many people are working from home, or in smaller groups, due to COVID-19 precautions.)
Prohibited activity can occur during Zoom or other videoconferencing calls, or in text messages, emails, videos, Slack, and social media posts.
Ready to make your organization a safer with workplace sexual harassment training videos for employees ? Sign up for a free demo now.
[i] Review the court’s decision 590 US _ (2020) at: https://www.supremecourt.gov/opinions/19pdf/17-1618_hfci.pdf
[ii] These states’ laws prohibit sexual orientation/ gender expression discrimination in the workplace: California, Colorado, Connecticut, Delaware, District of Columbia, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, Nevada, New Hampshire, New Jersey, New Mexico, New York, Oregon, Rhode Island, Utah, Vermont, Virginia, and Washington, Wisconsin (sexual orientation only).
[iii] Alabama, Alaska, Arizona, Arkansas, Florida, Georgia, Idaho, Indiana, Kansas, Kentucky, Louisiana, Michigan, Mississippi, Missouri, Montana, Nebraska, North Carolina, North Dakota, Ohio, Oklahoma, Pennsylvania, South Carolina, South Dakota, Tennessee, Texas, West Virginia, and Wyoming.
[iv] Note that generally, Title VII applies to employers with 15 or more employees who worked for the employer for at least 20 calendar weeks in the current or prior year.