In the landmark case, Bostock v. Clayton County, the Supreme Court of the United States ruled on June 15 that discrimination on the basis of sexual orientation or gender identity constitutes discrimination “because of … sex” under Title VII of the Civil Rights Act of 1964. Almost 56 years after this legislation was first enacted, the highest court of our land has officially interpreted Title VII’s protected class, on the basis of “sex,” to include and protect LGBT employees from unjust discrimination in the workplace.
Before the Supreme Court’s ruling in Bostock, sexual orientation or gender identity were not always included as a protected class — essentially leaving room for discrimination against LGBT individuals to take place. While the Title VII standard “because of sex” could potentially be satisfied by showing that an employer’s conduct was sexual in nature, or that a company treated one sex with hostility or one sex better than another, or that discrimination occurred on the basis of one’s pregnancy, or sufficient leave to care for oneself or a family member was not provided; discrimination on the basis of one’s sexual orientation or gender identity was not explicitly prohibited. Although some states may have formerly passed laws banning discrimination against sexual orientation or gender identity, previously, there was no federal law protecting private workers from such discrimination. Fears of discrimination, rejection, harassment, punishment, limited opportunities or other adverse effects in the workplace may have contributed to many individuals’ hesitance to personally accept or publicly announce their own LGBT status. The official interpretation of this protection, such that it now includes sexual orientation and gender identity, will empower many LGBT people to live authentically and pridefully as their full selves without fear of workplace discrimination.
As the Supreme Court points out in the Bostock opinion, when the Civil Rights Act was first adopted in 1964, legislators may not have had sexual orientation or gender identity specifically in mind when drafting statutory prohibitions of discrimination against employees on the basis of race, color, sex, national origin and religion. However, in its capacity to interpret our nation’s laws, the Supreme Court has now answered those questions about the scope of Title VII and the breadth of its protections in its latest ruling on the subject. This is not the first time the Act’s unforeseen consequences have become more apparent over the years — including its prohibition against discrimination on the basis of motherhood or its ban on the sexual harassment of male employees. In the eyes of the Supreme Court, the limits of the drafters’ imaginations at the time of enacting Title VII are not a reason to ignore the law’s, and society’s, current demands and necessary protections needed to ensure fair treatment in the workplace, regardless of sexual orientation or gender identity.
The Supreme Court seems to recognize Bona Fide Occupational Qualifications (BFOQs) which might still provide for exceptions of LGBT status that employers are allowed to consider while making decisions about hiring and retaining employees if the qualification is related to an essential job duty and is considered necessary for the operation of the particular business. These BFOQs reflect alleged societal concerns to preserve our Constitution’s promise of free exercise of religion and could potentially provide loopholes for discrimination in the workplace to occur. The First Amendment to the Constitution can bar the application of employment discrimination laws, such as Title VII, to claims concerning the employment relationship between a religious institution and its ministers. Only time and future cases will show how the Religious Freedom Restoration Act of 1963 (RFRA) may be interpreted in correlation with the new, expansive definition of “sex” as a protected class.
Outside of these limited BFOQ exceptions provided for by the RFRA; employees who face potential discrimination because of their sexual orientation or gender identity now have an avenue to pursue Title VII claims. Just like with other discrimination cases, those subject to adverse action in the workplace must still provide evidence of discrimination because of LGBT status above and beyond some legitimate nondiscriminatory reason to meet their burden of persuasion.
Besides obviously intentional discrimination, Title VII should still also protect employees from unintentional discrimination if a policy or practice has an adverse effect on LGBT employees, now a protected group, overall. Even if an employer can demonstrate that a policy is job related and consistent with a business necessity, LGBT employees now have an opportunity to show under Title VII that alternative policies or practices exist that have a less discriminatory impact on the employees but still serve the employer’s business goals.
Additionally, Title VII should now also protect employees from harassment in the workplace because of their LGBT status.
Practically speaking, employees should consult with an attorney as soon as possible if they feel they have been discriminated against because of their sexual orientation, gender identity or some other protected class under Title VII. To abide by Title VII, employers should ideally work to adopt and effectively implement non-discriminatory employment policies which provide for protections of LGBT employees.
Societal views have shifted since 1964 when LGBT status was historically unpopular. Ultimately, the Supreme Court has now made it clear that all persons are entitled to the benefit of Title VII’s protections within the clear meaning of the statute as it is written on its face. This does not require new legislation. In Title VII, Congress adopted broad language making it illegal for an employer to rely on an employee’s sex when deciding to fire that employee. The Supreme Court no longer hesitates “to recognize today a necessary consequence of that legislative choice: An employer who fires an individual merely for being gay or transgender defies the law.”
Zachary Porfiris is a family law attorney with Sodoma Law, based in Charlotte, NC. He is a member of the Bar in both North Carolina and South Carolina.