Any Uncertainty Ends – Sexual Orientation and Gender Identity Discrimination by Employers is Unlawful Under Title VII

By Bill Haut, Densborn Blachly LLP

Court Ruling. On June 15, 2020, the United States Supreme Court held, in what has been described as a landmark decision, that an employer that fires an employee merely for being gay or transgender commits impermissible discrimination under Title VII of the Civil Rights Act of 1964. Bostock v. Clayton County, Georgia, 2020 WL 3146686 (U.S. Jun. 15, 2020). Six of the nine Court justices supported the decision and the majority opinion was authored by Justice Gorsuch.

Title VII. This portion of the Civil Rights Act of 1964 prohibits public employers and most private employers with at least 15 employees from making hiring, firing and other employment-related decisions based on race, color, national origin, religion or sex. Sex is the prohibited category of discrimination at issue in the Bostock case and has now been interpreted to include discrimination based on an applicant’s or employee’s sexual orientation or gender identity.

Judicial v. Legislative Decision. While the debate over whether the Bostock decision was appropriate for a judicial (rather than legislative) resolution will continue, employers must comply with the Bostock holding to avoid liability for claims of employment discrimination based on sexual orientation and gender identity.

Prior State and Local Action and Court Decisions. Prohibiting discrimination based on sexual orientation and gender identity is not new for Indiana employers. While the State of Indiana does not currently have a statute prohibiting such discrimination on a state-wide basis, several cities and counties do, including Indianapolis. Additionally, in 2017, the federal appeals court with jurisdiction over Indiana ruled that sexual orientation discrimination is impermissible sex discrimination under Title VII. Similarly, for Indiana-based employers with facilities in other states, there are approximately 21 states and the District of Columbia with laws on the books prohibiting both sexual orientation and gender identity discrimination in public and private employment.

Action Required. Employers should review their employment policies and practices and update them as necessary to prohibit discrimination based on sexual orientation and gender identity. As with all employment policies, employers must effectively communicate such policies to all employees, and train managers on proper hiring, firing, job assignment and other employment practices impacted by the Bostock decision. Communication and training should not be a one-time event, but should be conducted on a regular basis and policies must be consistently enforced.

The information contained in this publication should not be construed as legal advice or opinion on any specific facts or circumstances. The contents are intended for general informational purposes only, and you are encouraged to consult your own legal counsel on any legal questions you may have concerning your particular situation