On June 17, 2020, the U.S. Supreme Court ruled, in Bostock v. Clayton County, Georgia, that employers with at least 15 employees cannot discriminate against employees on the basis of sexual orientation, gender expression, or gender identity.

The Ruling in Bostock

Title VII of the Civil Rights Act of 1964 prohibits employers with 15 or more employees from discriminating against employees on the basis of sex (and other protected classes). Previously, Texas courts and the federal courts governing Texas employers held that the protected class “sex” did not include gender identity, gender expression, or sexual orientation. However, in Bostock, the U.S. Supreme Court definitively held that employment discrimination based on sexual orientation, gender expression, or gender identity constitutes discrimination based on “sex” and, therefore, it is prohibited by Title VII.

The Court’s main reasoning was lengthy, but employers should note a few points from the Court’s reasoning:

• If an employer intentionally relies in part on an individual employee’s sexual orientation or gender identity when deciding to discharge an employee, the employer has violated Title VII, because discrimination on the basis of sexual orientation or gender identity necessarily requires an employer to intentionally treat employees differently because of their sex. 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.
• An employee’s sex (including sexual orientation or gender identity) is not required to be the only or primary cause of an employer’s adverse action to be unlawful.
• An employer cannot escape liability by demonstrating that it treats males and females comparably as groups. An employer who intentionally fires an individual employee in part because of that individual’s sex violates the law even if the employer is willing to subject all male and female homosexual or transgender employees to the same rule.

What does this mean for employers?

The cases before the court all dealt with termination of an employee, but the anti-discrimination prohibition extends to all tangible employment actions. Failing to hire, terminating, failing to promote, and, in some cases, taking disciplinary measures, are only a few examples of tangible employment actions.

Employers subject to Title VII (those with 15 or more employees) should take the time to inform everyone with decision-making authority of this rule, through either updated training programs or written communication. Further, employers should consider updating their Equal Employment Opportunity and anti-harassment policies to include references to sexual orientation, gender expression, and gender identity as a subset of the larger protected class of “sex.”

We will be watching to see how the lower courts will apply the reasoning of Bostock in future cases. The Court in Bostock noted that it was not opining on employers’ use of single-sex bathrooms and locker rooms, employers’ dress-codes policies, or employers’ potential religious objections. Future cases will need to be decided to determine whether Bostock will impact the current rules on these issues.

The attorneys at RMWBH are available to answer any questions you may have about compliance with Title VII.