Employment and Labor Law

Bostock v. Clayton County: Supreme Court Protects Sexual Orientation and Gender Identity in the Workplace

On June 15, 2020, the U.S. Supreme Court ruled that the federal law prohibiting “sex” discrimination in the workplace also protects against bias based on sexual orientation and gender identity. In a 6-3 decision1, Justice Neil Gorsuch wrote for the majority that “sex” necessarily served as the reference point for bias based on sexual orientation or gender identity and thus sexual orientation and gender identity are protected traits under Title VII of the Civil Rights Act of 1964 (“Title VII”). “If the employer fires the male employee for no reason other than the fact he is attracted to men, the employer discriminates against him for traits or actions it tolerates in his female colleague,” Gorsuch wrote in Bostock v. Clayton County.2

The Supreme Court’s decision means that, nationwide, employers subject to Title VII – private employers and state/local governments with 15 or more employees,
federal agencies, employment agencies, and labor unions with hiring halls or at least 15 members – are now prohibited from discriminating against employees because of sexual orientation or gender identity. Although Bostock addressed discrimination in employment, the decision likely will influence the reach of anti-discrimination provisions in other federal laws.

Until the Bostock decision, workplace discrimination protections for the LGBTQ community had been varied, limited mostly to local laws adopted by some
big cities and fewer than half the states. For example, twenty-two states and the District of Columbia prohibit discrimination based on sexual orientation and gender identity, according to the Human Rights Campaign, an advocacy group. Wisconsin law prohibits employment discrimination based on sexual orientation but not on gender identity. Protection for public employees had been limited to ten states, with six prohibiting discrimination based on both sexual orientation and gender identity, and four prohibiting discrimination based on sexual orientation but not gender identity.

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