SCOTUS decision means employers need to review policies and notices

By Jennifer Gimler Brady and A.J. Bolan

On June 15, 2020, the U.S. Supreme Court issued a landmark ruling in Bostock v. Clayton County, Georgia (No. 17-1618), holding that “[a]n employer who fires an individual merely for being gay or transgender violates Title VII” of the Civil Rights Act of 1964.

Man waves LGBTQ+ flag outside the Supreme Court of the United States | Photo by Ted Eytan

The Bostock opinion addresses the appeals of three separate plaintiffs whose employers fired them after learning of their sexual orientation or transgender status.  In reaching the conclusion that Title VII protections extend to sexual orientation and gender identity, the Court reiterated the well-known principle that “an employer who intentionally treats a person worse because of sex—such as by firing the person for actions or attributes it would tolerate in an individual of another sex—discriminates against that person in violation of Title VII.”  The Court rejected the employers’ argument that because the employers would discriminate against all homosexuals or transgender individuals, the employers were not discriminating against the employees because of sex.  The Court emphasized that the text of Title VII makes clear that it protects “individuals” rather than groups from discrimination and held that “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”  In other words, the Court recognized that sexual orientation and gender identity inherently rely on the employee’s sex.

The Court declined to address the effect its ruling may have on the interpretation of other federal and/or state laws.  However, the Court’s rationale in Bostock could readily be extended to other non-discrimination provisions that prohibit discrimination on the basis of sex, including statutes governing housing, public accommodations, education and healthcare.  Exemptions for religious employers may be available under Title VII, First Amendment law, or the Religious Freedom Restoration Act, and we expect to see further litigation on these issues.  Cases decided later this term, including Our Lady of Guadalupe School v. Morrissey-Berru and St. James School v. Biel, which address the “ministerial exception” included in Title VII, may provide further insight on how religious exemptions would apply.

The Bostock opinion, issued during Pride month, is a victory for LGBTQ employees and diverse workplaces.  While Delaware and its neighboring states, Pennsylvania, Maryland, and New Jersey, already prohibit employment discrimination based on sexual orientation and gender identity, the Bostock decision now extends these protections to the estimated half of LGBTQ employees living in states without state-level protections.

Any Delaware employer covered by Title VII should already be in compliance with state non-discrimination laws, as Delaware’s non-discrimination protections apply to employers of four or more employees, while Title VII applies only to employers of 15 or more employees.  Therefore, employers already complying with their state anti-discrimination provisions should not have to change much going forward.  However, employers should undertake a review of their employment policies and non-discrimination notices to both update any Title VII language to include sexual orientation and gender identity, as well as to ensure their internal policies do not discriminate on the basis of sexual orientation or gender identity.  Additionally, employers should take this opportunity to update their anti-discrimination training to include the Title VII protections for LGBTQ employees and remind their employees that discrimination in the workplace is not permitted.

Businesses also can expect to see increased activity at the state level aimed at expanding LGBTQ protections in other areas.  Businesses should proactively review and/or update their policies to provide discrimination protections if they are covered by any provisions prohibiting discrimination on the basis of sex.

The Bostock opinion may lead to an increase in discrimination cases brought against employers and shift cases from state courts to federal courts moving forward.  Employees who may have been hesitant to bring such claims under state law may now feel more empowered to raise their discrimination claims after the Supreme Court’s ruling.

As a final observation, the Court’s ruling in Bostock could upend the recent rule issued by the U.S. Department of Health and Human Services, which rolled back protections for LGBTQ persons in healthcare insurance programs by limiting the definition of “sex” to “biological sex.”  When evaluating health insurance programs, employers should consider whether plans include non-discrimination protections for their employees.

Jennifer Gimler Brady is a partner and general counsel at Potter Anderson & Corroon LLP in Wilmington. A.J. Bolan is an associate at Potter Anderson. Brady was recognized as the 2018 “Lawyer of the Year” in health care law for Wilmington by The Best Lawyers in America.