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On June 15, 2020, the United States Supreme Court, by a 6-3 margin, published a historic decision that greatly expands the definition of “sex” discrimination under the federal Civil Rights Act, also known as Title VII. In Bostock v. Clayton County, Georgia, Justice Gorsuch, a Trump appointee, penned the Court’s majority opinion holding that an employer who terminates an employee due to the employee’s sexual orientation or sexual identity violates Title VII’s prohibition on workplace discrimination because it discriminates on the basis of sex.
What is Title VII?
The Civil Rights Act of 1964 was enacted to prohibit workplace discrimination on the basis of certain specified characteristics: race, color, religion, sex, and national origin. It applies to employers with 15 or more employees. Simply put, an employer may not discriminate on the basis of these enumerated protected classes with regard to any term, condition, or privilege of employment. Title VII protected employees from the application process through termination, including recruiting, hiring, training, discipline, promotion, benefits, performance metrics, and discharge. Since Title VII’s enactment, “sex” discrimination was not recognized as including discrimination on the basis of sexual orientation or sexual identity. As Justice Alito’s dissent pointed out, several bills have been introduced in Congress over the years seeking to add sexual orientation and/or sexual identity to the list of characteristics entitled to protection under Title VII, but none of those bills had ever passed.
What Does the Bostock Opinion Hold?
The Majority’s opinion in Bostock essentially held that the prior attempts to amend Title VII were unnecessary, because discrimination on the basis of sex clearly includes sexual orientation and sexual identity discrimination under the plain meaning of the term. The Court reasoned that an employer who discriminates against homosexual or transgender employees necessarily and intentionally applies sex-based rules, even if that was not the original legislative intent. The Majority’s entire opinion was summed up fairly succinctly in its first two paragraphs:
Today, we must decide whether an employer can fire someone simply for being homosexual or transgender. The answer is clear. 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.
Those who adopted the Civil Rights Act might not have anticipated their work would lead to this particular result. Likely, they weren’t thinking about many of the Act’s consequences that have become apparent over the years, including its prohibition against discrimination on the basis of motherhood or its ban on the sexual harassment of male employees. But the limits of the drafters’ imagination supply no reason to ignore the law’s demands. When the express terms of a statute give us one answer and extratextual considerations suggest another, it’s no contest. Only the written word is the law, and all persons are entitled to its benefit.
What Does the Bostock Decision Mean for Employers?
Despite that Bostock may go down as a landmark decision regarding LGBT employment rights, the decision should not have a practical impact on Maryland or District of Columbia employers, as both have long had their own statutes providing equal employment protections on the basis of sexual orientation and sexual identity, so employers in those jurisdictions should already have policies and practices in place to ensure that employment decisions are not made on these bases. In fact, these laws apply to all employers in the respective jurisdictions, not just those employers who have 15 or more employees. Employers should be familiar with their respective state’s equal employment laws, as many states provide greater protection to individuals than federal laws provide. If an employer has employees in multiple states, the Bostock opinion now ensures some basic uniformity that the law protects individuals from discrimination on the basis of gender identity or sexual orientation.
The DC Office of Human Rights poster identifying 21 protected traits under the DC Human Rights Act can be found here, and the Maryland Commission on Civil Rights “Employment Discrimination is Unlawful” poster is available here.
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