U.S. Supreme Court Holds that Prohibition Against Workplace Discrimination Based on Sex Includes Sexual Orientation / Preference and Gender Identity

By Matt Fitzsimmons, Member

On June 15, 2020, the United States Supreme Court issued a major decision dealing with workplace discrimination.  The case, Bostock v. Clayton County, Georgia, raised the question of whether the federal workplace statute prohibiting discrimination on the basis of race, color, religion, sex, and national origin (Title VII of the 1964 Civil Rights Act) applies to gay and transgender people.

The Court held, in a 6-3 decision (172 pages), that Title VII’s prohibition of discrimination on the basis of sex includes discrimination on the basis of one’s sexual orientation and gender identity.  As of June 15, 2020, Ohio did not have any statute prohibiting workplace discrimination against gay and transgender people.  Title VII applies to employers engaged in interstate commerce who employ at least fifteen or more employees.  Prior to the Supreme Court’s June 2020 ruling in Bostock, the lower federal appellate courts were sharply divided on this question.

As Justice Gorsuch wrote for the majority:

An employer who fires an individual for being homosexual or transgender, 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.

The dissenting Justices decried the majority ruling as raw judicial legislating from the bench -– Judges engrafting a meaning onto the statute that does not appear in the words of the legislation and was never intended by Congress.  Among other criticisms, the dissenters argued that the constitutionally proper way to remedy workplace discrimination against gay and transgender people would be for Congress to pass a law expressly stating such a prohibition.

In light of this new Supreme Court decision, employers should review their Employment Handbooks and Policies to include policies against on sex discrimination based on sexual orientation/preference and gender identity.  Employers also need to conduct prompt investigations of claims of workplace discrimination or harassment based on sexual orientation/preference and gender identity.

For more information or for help navigating the impact of the Bostock decision on the workplace, please contact Matt Fitzsimmons.