In a landmark decision in Bostock v. Clayton County, the Supreme Court of the United States ruled discrimination against LGBTQ employees violates Title VII of the Civil Rights Act of 1964. The 6-3 ruling is significant in that it did not rely on technical grounds, but rather on the basis that any disparate treatment of employees based on sexual orientation or gender identity is, by definition, discrimination based on sex. This decision upended what had been settled law until, at least, 2010, which generally held that Title VII’s protections do not extend to discrimination based on sexual orientation or gender identity.
Starting in 2011, the U.S. Equal Opportunity Employment Commission, which is responsible for enforcing federal laws that make it illegal to discriminate, interpreted Title VII to prohibit discrimination against LGBTQ individuals, however, many courts did not agree and, eventually, the U.S. Department of Justice took the opposite position under the current administration. Indeed, as the Court noted in Bostock, U.S. Congress has repeatedly tried to amend Title VII to expressly prohibit discrimination based on sexual orientation and gender identity to resolve the conflict between these varying interpretations. There is no doubt that this decision is historic and important and will have the most immediate impact on employers in states where LGBTQ employees are not already protected by state laws or where state laws only provided weak protections. Title VII applies both the private and public employers with have 15 or more employees and to the federal government, employment agencies, and labor organizations. Due to the analytical framework used in the Supreme Court’s opinion, even employees working for businesses outside of the purview of Title VII may now have expanded protections under state laws that prohibit discrimination based on sex, but not based on sexual orientation or gender identity.
Notably, because the decision is rooted in an analysis of the meaning of protections from discrimination “based on sex,” it will likely apply to other laws outside of the employment context that prohibited sex-based discrimination but were not previously interpreted to protect against discrimination based on sexual orientation or gender identity, such as protections from discrimination in housing. This interpretation also appears to apply to state laws that prohibit discrimination based on sex, opening a broad array or protections for LGBTQ individuals.
