In a 6-3 landmark decision by the United States Supreme Court, the Court held that an employer who fires an individual merely for being gay or transgender violates Title VII of the Civil Rights Act of 1964.
The ruling in Bostock v. Clayton County, Georgia case originated from three different sex discrimination claims under Title VII:
While the Eleventh Circuit held that Title VII does not prohibit employers from firing employees for being gay (Bostock), the Second (Zarda) and Sixth (Stephens) Circuits allowed the sex discrimination claims to proceed.
The Supreme Court granted review to resolve the disagreement over the scope of Title VII’s protections for homosexual and transgender persons and held that an employer who intentionally penalizes an employee for being homosexual or transgender violates Title VII.
No Change in California Law
In California, employers with five or more employees must already comply with California’s Fair Employment & Housing Act (FEHA), which is a law prohibiting discrimination based on sex, gender, gender identity, gender expression, and sexual orientation, among other traits. CA Gov’t Code § 12940(a).
California recently deleted gender specific pronouns from the language used in FEHA and the California Family Rights Act (AB 1556 and SB 179) and requires covered employers (+5 employees) to educate employees about transgender rights. CA Gov’t Code § 12950(a)(2), 12950.1(a)(3). Covered employers must also post the Transgender Rights in the Workplace poster.
Employers with employees in other states who do not currently recognize these protections are advised to review and amend their equal employment opportunities and harassment policies to comply with the new Bostock ruling.
California employers who fail to comply with sex, gender identity, gender expression, and other protections may not only face a lawsuit based on California law, but may also have to defend Title VII violations, per the recent Court’s ruling.