By: Aaron Holland
You may have seen through the news or your social media that the Supreme Court recently issued a decision on Bostock v. Clayton County and two related cases, that collectively answered one big question: whether an employer can fire or refuse to hire someone based on their sexual orientation or gender identity. In a 6-3 decision, it was made clear that this kind of discrimination is unlawful under Title VII of the Civil Rights Act of 1964. This decision might mean big changes for many employers, especially to diversity and anti-discrimination training in the workplace.
What the Case detailed…
Gerald Bostock, a gay man, was fired from his position as a welfare services coordinator with Clayton County, Georgia. After a decade of positive performance, his employment was terminated in an evaluation for “conduct unbecoming of an employee.” Ironically, this evaluation came shortly after his participation in a softball league inclusive of gay members. Bostock argued that he was fired for being gay and that this was a violation of the 1964 Civil Rights Act.
…and the Decision that came in.
The Court held that an employer who fires an individual for being homosexual or transgender violates the law. The opinion was based on the words from Title VII, “…discriminate…because of such individual’s…sex.”
The decision to incorporate sexual orientation or gender identity into the “because of sex” category was largely based on the idea that an employer cannot discriminate on these bases without taking the sex of the individual into account. As Justice Neil Gorsuch wrote, “…if changing the employee’s sex would have yielded a different choice by the employer ─ a statutory violation has occurred.” In more rudimentary terms, the choice of employment cannot depend on biological anatomy.
This decision comes at a time when divisiveness seems to be running rampant, but many employers are doing everything they can to overcome exclusion and focus on diversity for their business’s benefit. The Court’s determination exhibits how workplace inclusion has been a strong theme since the 1960s and continues to shape businesses today.
what this means for employers
In short, this means that failing or refusing to hire or discharging any individual because of their sexual orientation or gender identity is a violation of federal law. A violation of this type could lead to significant penalties, including a fine up to $300,000.
If your business is in one of the 28 states, or D.C., that already has protections against sexual orientation or gender identity discrimination, then this should not truly change anything about your operations. If not, and this federal law is the first to cover gay and transgender discrimination rights in your state, then you may need to update policies and training.
The ruling, in this case, impacts businesses all the way from the top-level down to the lowest level of employees. A revision of your EEO policy may be necessary to reflect that sexual orientation and gender identity will not affect employment. Management training should be updated to incorporate and reflect the new (or possibly existing) non-discrimination policies in regard to sexual orientation and gender identity.
While the Bostock case opinion speaks more to the actions of an employer, Title VII expands into more than just a boss’s roll in discrimination. Non-discrimination policies should also be modified to include enforcement against public employee discrimination based on sexual orientation or gender identity. These policies should include robust reporting sections for anyone that feels the need to report possible situations of discrimination. If you have an employee handbook, it should be updated and re-distributed to all employees. As as supplement to that update, you should educate your workforce via additional training so that everyone recognizes and understands bias and discrimination in the workplace.
Notifying all employees, especially management, of this amended policy is essential to creating an atmosphere that is inclusive to all individuals. Diversity and inclusiveness are necessities for a thriving business, and now more than ever, these policies are essential to protecting individuals. Decisions like the one the Supreme Court made last week are working to combat this division.
one final caution
Title VII does not cover all individuals in the workplace from discrimination. Any business with fewer than 15 employees is not subject to this federal anti-discrimination law. Independent contractors and workers hired through temp agencies are also typically not protected from discrimination in the workplace under Title VII. However, many state legislatures have filled in the gaps where Title VII lacks and provided that discrimination in the workplace, whether by employers, fellow employees, or clients/customers, is not tolerated.
The bottom line is you should do the right thing and ensure your employees do too.
Aaron Holland, at the time of this post, is a rising 2L at Penn State Dickinson Law. He currently serves as the Event Coordinator for the Federalist Society and is interested in entrepreneurship law and litigation. Aaron is a devoted husband, a father of a one-year-old daughter, and a United States Marine.