What Does Landmark Ruling Mean for California Employers?
Federal courts have debated for decades about whether the protection against sex-based discrimination in Title VII of the Civil Rights Act also protects against discrimination on the basis of sexual orientation. This debate has largely not affected Californians, since state law already provides anti-discrimination protection on the basis of sexual orientation and transgender status. However, on June 15, the United States Supreme Court ended the federal debate and extended the Title VII protections to LGBTQ+ employees nationwide.
In the historic case, Bostock v. Clayton County, the Supreme Court conclusively established that businesses covered by Title VII must protect employees against discrimination based, even in part, on the employees’ sexual orientation or transgender status. Relying on established precedent holding it unlawful under Title VII to discriminate on the basis of sex, the Court reasoned that discrimination on the basis of orientation or transgender status is essentially a form of sex-based discrimination. The majority opinion concluded that it is not possible to discriminate on the basis of orientation or transgender status without necessarily also discriminating on the basis of sex.
The Bostock ruling comes on the heels of several very important Supreme Court cases that are essential to LGBTQ+ rights. In the landmark 2003 decision, Lawrence v. Texas, the Court ruled that laws prohibiting private homosexual activity between consenting adults are unconstitutional. Ten years later, in United States v. Windsor, the Supreme Court concluded that the federal Defense of Marriage Act, which attempted to limit marriage to opposite-sex unions, was an unconstitutional violation of the Fifth Amendment’s guarantee of equal protection under the law. In Windsor, the Court concluded that, where states had recognized same-sex unions, the federal law must also recognize the union. Most recently, in the 2015 Obergefell v. Hodges decision, the Court declared that same-sex couples have the fundamental right to marry.
With regard to Title VII protections, until Bostock, the federal courts were split on whether the law protected LGBTQ+ employees. The Bostock case arose in the U.S. Court of Appeals for the 11th Circuit, which concluded that employers were not prohibited from firing employees because of their orientation and transgender status. That ruling directly conflicted with decisions coming from the 2nd and 6th circuits, where courts had already concluded that Title VII’s protections against sex-based discrimination would necessarily protect against discrimination on the basis of orientation. The Supreme Court agreed to resolve the conflict.
What Does This Mean for California Employers?
The California Fair Employment & Housing Act, which applies to employers with five or more employees, protects employees against discrimination on the basis of their sexual orientation. This protection dates back to 1976. In 2011, the California Legislature added gender identity and gender expression as expressly protected categories under the law. Moreover, the DFEH has unambiguously stated that employers may not discriminate against employees who identify as transgender or gender non‑conforming. The biggest change for California employers is that employees may now bring a claim for sexual orientation or transgender status under federal law (Title VII of the Civil Rights Act of 1964), as well as state law.