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What employers should know about the most recent SCOTUS decision

No. 1: The decision

The U.S. Supreme Court ruled that federal law protects gay and transgender workers from job discrimination. Justice Gorsuch wrote the opinion by the court. He was joined by Chief Justice Roberts and Justices Ginsburg, Breyer, Sotomayor and Kagan to form a 6-3 majority, interpreting the longstanding federal ban on sex discrimination in the workplace to cover bias on the basis of sexual orientation and gender identity. The case, Bostock v. Clayton County, Georgia, was argued on October 8, 2019, and decided June 15, 2020.

No. 2: The cases involved

The decision was the result of a split in decisions among the U.S. Circuit Court of Appeals and three cases brought together as one by the Supreme Court. Two involved allegations of discrimination based on sexual orientation; one was based on gender identity. As the case explained in the preamble:

  • Clayton County, Georgia, fired Gerald Bostock for conduct “unbecoming” of a county employee shortly after he began participating in a gay recreational softball league.
  • Altitude Express fired Donald Zarda days after he mentioned being gay.
  • & G. R. Harris Funeral Homes fired Aimee Stephens (who presented as a male when she was hired) after she informed her employer that she planned to “live and work full-time as a woman.”

Each employee sued, alleging sex discrimination under Title VII of the Civil Rights Act of 1964. The Eleventh Circuit held that Title VII does not prohibit employers from firing employees for being gay and so Mr. Bostock’s suit could be dismissed as a matter of law. The Second and Sixth Circuits, however, allowed the claims of Mr. Zarda and Ms. Stephens to proceed.

No. 3: What that means in Colorado

Employees in Colorado have been protected under state law since 2007.  When the law was passed it encompassed sexual orientation and gender identity.  Currently, 22 states have the same protections as Colorado, and 28 do not.  Of the states that do not, many have protections for certain employees–such as employees who work for the state–under executive order.

No. 4: What issues remain

There are still open issues.  Religious organizations are often protected from civil rights litigation due to the First Amendment of the Constitution.  In his written opinion for the Majority, Justice Gorsuch made clear that such a case is to be argued in the future.  Another area of controversy for gender identity is sports, with disputes arising when a person born male or female wants to compete with a team of the opposite gender.  Sports teams who employ players seemingly can no longer discriminate on this basis, and it will be interesting to see how this is managed by those teams.

No. 5: Actions for employers

It is time for employers to review their policies and make sure they include protections for sexual orientation and gender identity, if this is not an update already made.  Employees suffering harassment due to either reason must have their claims investigated and action taken to end the harassment.