On June 15, 2020, the United States Supreme Court decided Bostock v. Clayton County, Georgia, No. 17-1618 (June 15, 2020), holding that employers who fire an employee because of the employee’s sexual orientation or because the employee is transgender violate Title VII of the Civil Rights Act of 1964. The Court held that Title VII’s prohibition against discrimination “on the basis of sex” includes discrimination against gay and transgender individuals. The Court stressed that the issue before it was only “whether an employer who fires someone simply for being homosexual or transgender has discharged or otherwise discriminated against that individual ‘because of such individual’s sex.'” Opinion at 31. It is clear, however, that the decision will apply to other adverse actions, such as discipline, wage reductions, demotions and the like. The Court, however, said it was not deciding whether other policies, such as policies regarding bathrooms or locker rooms, may or may not qualify as unlawful discrimination or may be justifiable under other provisions of Title VII.
What Does This Mean For You? You should be aware that your business now may not discriminate against individuals based on their sexual orientation or because they are transgender. If you have a handbook with an Equal Employment Opportunity and/or an anti-harassment policy, you should review these policies to make sure they include sexual orientation and transgender status in any list of protected categories, and update them if they do not. Please note that the Court left the door open to the prospect that certain decisions may be defensible under other areas of Title VII, but these exceptions are very narrowly drawn. For example, discrimination may be lawful if based on a bona fide occupational qualification (“BFOQ”). Before relying on a BFOQ, you should check with counsel. The BFOQ exception is very difficult to establish. In addition, depending on the situation, religious organizations may be able to raise a ministerial exception to the requirements of Title VII. Such an exception is available only with respect to clergy and others who are important to the clerical and spiritual mission of a church. The employer must prove that these exceptions apply.
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**This update is provided for informational purposes only and
should not be construed as legal advice or as creating an
attorney-client relationship where one does not already exist.**