Bostock and You: Title VII Protects Gay and Transgender Employees from Discrimination

By Audrey Roofeh

Earlier today, June 15, 2020, the United States Supreme Court handed down a decision in Bostock v. Clayton County, and held that individuals cannot be discriminated against at work for being gay or transgender.

When the Civil Rights Act was passed in 1964, it prevented private businesses from discriminating against employees on certain bases – sex, race, religion, color and national origin. This means that businesses cannot take adverse actions against an employee -- like firing or demoting – because of these characteristics. Over the last nearly 60 years, the courts have interpreted the meaning of these terms, and congress has added protections, but until now, whether these protections apply to gay and transgender employees has been unresolved.

 In pockets of the United States, gay and transgender workers have been protected against discrimination by state and/or local laws, and even federal law, where the courts have interpreted the Civil Rights Act to provide that protection.

The personal costs: listen to this interview with one of the plaintiffs, Aimee Stephens, who gives a tremendous amount of herself to share with us what her experience was as a transgender person, including the letter she shared with her colleagues, explaining her transition to becoming a woman.

 In a series of cases the United States Supreme Court considered the question of whether these protections apply to gay and transgender employees. In today’s decision, the Court held that Title VII protections apply to gay and transgender employees. Justice Gorsuch wrote in the 6-3 majority opinion that sex refers to biological distinctions, and “an employer violates Title VII when it intentionally fires an individual employee based in part on sex,” and “it is impossible to discriminate against a person for being [gay] or transgender without discriminating against that individual based on sex.”

Justice Gorsuch takes pains to point out: a person’s status as gay or transgender is not relevant to employment decisions.

In a number of jurisdictions, discrimination on the basis of sexual orientation and gender identity are already prohibited, but for many states and municipalities, these protections are new. Businesses must ensure that decisions including, but not limited to, failing to hire, discharge or other adverse decisions in no way relate to transgender identity or sexual orientation, as you already ensure they are not related to other protected categories.

 More than that, businesses must ensure that workplaces are inclusive of gay and transgender colleagues – prevent harassment of your gay and transgender colleagues and build a culture where individuals feel a sense of belonging and are respected for their uniqueness, with gay or transgender status as one element of identity.

Audrey Roofeh
Mariana Strategies