Today, the Supreme Court handed down its opinion in Bostock v. Clayton County, ruling once and for all that Title VII’s protections based on “sex” apply to LGBTQ workers.
This is a case I have been following closely, and the decision has been a long time coming. In the wake of President Trump’s roll-back of health insurance protections for transgender Americans, the LGBTQ community needed a win, and this is it.
It turns out there were several swing votes on the Supreme Court after all. Justice Gorsuch, delivering the opinion of the Court, along with Chief Justice Roberts, provided crucial support for this decision.
Rejecting a long-touted argument by opponents of equal treatment for LGBTQ workers, the Supreme Court today held that it does not matter if an employer treats women as a group the same when compared to men as a group. “If the employer intentionally relies in part on an individual employee’s sex when deciding to discharge the employee — put differently, if changing the employee’s sex would have yielded a different choice by the employer — a statutory violation has occurred.” This is the right result.
For employers, this means federally mandated equal treatment for all LGBTQ employees. Although many states already had laws prohibiting discrimination on the basis of sexual orientation, now all states must provide equal protection to LGBTQ workers.
If your employment policies do not currently provide for nondiscrimination based on sexual orientation and gender identity, you should update them to explicitly list those categories. While LGBTQ employees will now receive protection based on “sex” regardless of employer policies, expanding your policy to include protections for sexual orientation and gender identity is not only the right thing to do, but it will provide evidence that your company intends to comply with Title VII’s protection of ‘sex’ in its totality.
JoLynn Markison is a partner at the international law firm Dorsey & Whitney in its labor and employment practice and an advocate for the LGBTQ community.