On June 15, 2020, the U.S. Supreme Court issued its long-awaited decision in Bostock v. Clayton County and two related cases that presented the same issue: whether employment discrimination on the basis of an individual’s sexual orientation or gender identity constitutes unlawful sex discrimination under Title VII of the Civil Rights Act of 1964.  In recent months, many Supreme Court observers refused to predict how the Court would rule, saying it was too close to call, but many predicted the outcome would turn on the vote of Justice Neil Gorsuch, a President Trump appointee.  Justice Gorsuch authored the 37-page majority opinion, and, in a 6-3 decision, the Court determined that employment discrimination on the basis of sexual orientation or gender identity is unlawful under Title VII.

The Court’s Reasoning.  Justice Gorsuch’s reasoning was straightforward: Title VII clearly prohibits discrimination on the basis of sex, and when an employer discriminates against an individual based on the gender of who he/she loves or which gender he/she identifies as, that individual’s “sex” is a factor in the decision.  Put another way, an employer who hires women who date men, but refuses to hire men who date men is ultimately differentiating between the candidates based on their sex.  While this reasoning drew criticism from three dissenting justices (Thomas, Alito and Kavanaugh) as violating the intent of the legislators who passed Title VII, Justice Gorsuch cited several prior Supreme Court decisions in which Title VII’s strict prohibition on “sex discrimination” was interpreted to reach results that the drafters may not have envisioned.  Indeed, some believed the Court’s 1998 decision in Oncale v. Sundowner Offshore Services, Inc. (holding that same-sex sexual harassment is an unlawful form of sex discrimination under Title VII) authored by Gorsuch’s predecessor,  Antonin Scalia, made the outcome in the Bostock case a foregone conclusion.

What the Decision Means for Employers.  Several federal courts sitting in Pennsylvania have in recent years reached the same conclusion that the Supreme Court did in the Bostock decision.  In addition, the Pennsylvania Human Relations Commission (PHRC) issued written guidance in 2018, advising that the Commission consider discrimination on the basis of sexual orientation and gender identity to be unlawful under the Pennsylvania Human Relations Act.  So, the risk of liability for such discrimination is not new to employers in the Commonwealth.  However, the Supreme Court’s decision brings a degree of finality to how Title VII must be interpreted and will likely increase the number of such claims filed with the PHRC, Equal Employment Opportunity Commission and in federal courts.  At a minimum, employers should consider revising their equal employment opportunity policies to clearly prohibit discrimination on these grounds – and to update non-discrimination/non-harassment training to ensure the scope of the law is understood by managers and employees alike. Likewise, human resources professionals would be well-advised to consider best practices for addressing internal complaints of discrimination on these grounds.

What the Decision Does Not Mean.  In his written opinion, Justice Gorsuch pointed out that the employers involved in the trio of cases before the Court were not asserting a religious basis under the Religious Freedom Restoration Act (RFRA) to justify the challenged discrimination.  It remains possible that an employer with a religious objection to homosexuality or transgender status could successfully defend a discrimination claim on that basis.  Likewise, Justice Gorsuch pointed out that the Court’s opinion in the Bostock case should not be construed to require any particular outcome pertaining to issues such as dress codes or use of locker rooms and rest rooms; those issues, according to the Court, would also need to be addressed in subsequent cases.  A closely related issue is whether employers commit unlawful discrimination by refusing to cover gender reassignment therapy and surgery in their health plans.  Three days prior to the Bostock decision, the Trump Administration rolled back an Obama-era regulation under the Affordable Care Act that required such coverage for certain employers; however, the question that remains is whether such coverage exclusions are now unlawful under Title VII (or the Americans with Disabilities Act).  Justice Gorsuch’s reminder of what his written opinion does not purport to address serves as a clear reminder that there are many related issues that have yet to be sorted out in court.  It may take years for a consensus to be reached on all of these issues; however, LGBTQ legal rights have advanced significantly over the past five years (starting with the Supreme Court’s recognition of same-sex marriage in June 2015) and odds are good that they will continue to do so.

There is no question that the Bostock case is a monumental decision for the LGBTQ community.  However, many employers in Pennsylvania have already adjusted their practices to prohibit discrimination on the basis of sexual orientation and gender identity.  For those employers that have not done so, the Bostock decision removes any question that it is now necessary to do so.