SCOTUS: Employers Prohibited from Discriminating on Basis of Sexual Orientation and Identity

In a landmark decision published June 15, 2020, the Supreme Court of the United States ("SCOTUS") in Bostock v. Clayton County, Georgia ruled that "[a]n employer violates Title VII [of the Civil Rights Act of 1964] when it intentionally fires an individual employee based in part on sex." SCOTUS further clarified its decision with the following:


"[Title VII of the Civil Rights Act of 1964]'s message for our cases is equally simple and momentous: An individual's homosexuality or transgender status is not relevant to employment decisions. That's because it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex."

This is a momentous decision putting millions of Americans on equal footing when it comes to fair employment practices.


As a result of this ruling, many employers may need to amend their employment and independent contractor agreements, as well as employee and staff handbooks. Typically, employee and staff handbooks have a section that contains a list of individuals and classes that are protected from discrimination in the workplace.


In instances where state employment law did not previously protect homosexual and transgender individuals from employment-based discrimination, many employers opted out of including homosexual or transgender individuals as a protected class of people altogether. Under the new law, regardless of whether your company or its employees entered into a contract under the previous interpretation of Title VII or any applicable state law, employers are now prohibited from discriminating against their employees on the basis of sexual orientation and sexual identity.


Below is an example of a paragraph which speaks to an Employer's anti-discrimination policy:

The Company strictly prohibits and does not tolerate discrimination against employees, applicants, or any other covered persons because of race, color, religion, creed, national origin or ancestry, ethnicity, sex (including pregnancy), sexual orientation, gender (including any gender identity), age, physical or mental disability, citizenship, past, current, or prospective service in the uniformed services, genetic information, or any other class or characteristic protected under applicable federal, state, or local law.

That last part is a catch-all provision, and is intended to capture any developments in the law not immediately stated in the preceding part of the paragraph.


Going forward, though, we should keep in mind is that this decision does not cover all employers. SCOTUS specifically refers to the fact that the First Amendment of United States Constitution can bar the application of employment discrimination laws "to claims concerning the employment relationship between a religious institution and its ministers."


While SCOTUS recognizes the existence of these rights for the first time, it did not rule whether the prohibition against discrimination of homosexual and transgender individuals can be imposed on religious institutions and its ministers. It simply left that matter open for a future case.


If you need assistance with drafting or revising your employment agreements, contractor agreements, employee or staff handbooks, or other employment agreements, please contact one of our attorneys or fill out the form on our contact page.

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