SCOTUS Rules LGBTQ Workers Protected From Employment Discrimination

In the recent landmark decision of Bostock v. Clayton County, Georgia, the U.S. Supreme Court ruled that an employer who fires an employee merely for being gay or transgender violates Title VII of the Civil Rights Act of 1964, which bars workplace discrimination against individuals with certain protected characteristics, such as race, national origin, religion, and sex. The consequential decision extends protections against workplace discrimination to LGBTQ workers throughout the country. Prior to this decision, fewer than half of the states outlawed employment discrimination against LGBTQ workers.

The three consolidated cases before the Court involved three long-term employees who had been fired by their respective employers after revealing that they were gay or transgender. Accordingly, the Court considered whether or not Title VII’s ban on discrimination “on the basis of sex” should be interpreted to include sexual orientation and gender identity. The 6-3 opinion written by Justice Gorsuch provided that “An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex.” Accordingly, the Court held, “Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids… An employer who fires an individual merely for being gay or transgender defies the law.”

Impact on California Employers
In California, sexual orientation and gender identity have been considered protected categories for several years. The Fair Employment and Housing Act (FEHA) expressly prohibits employers from discriminating or harassing individuals on the basis of their sexual orientation, gender identity, or gender expression. The Court’s decision will not impact the current protections set in place by FEHA. Instead, it provides greater protections for LGBTQ workers in all 50 states and allows complaints alleging sexual orientation and gender identity discrimination to be brought in federal court.

• FEHA defines gender identity as a person’s “internal understanding of their gender, or the perception of a person’s gender identity, which may include male, female, a combination of male and female, neither male nor female, a gender different from the person’s sex assigned at birth, or transgender.”
• FEHA defines gender expression is defined as a person’s “gender-related appearance or behavior, or the perception of such appearance or behavior, whether or not stereotypically associated with the person’s sex assigned at birth.”

Employers should continue to follow Department of Fair Employment and Housing regulations that ban discrimination or harassment in all aspects of the workplace, including hiring, firing, pay, job assignments, promotions, layoffs, trainings, fringe benefits, and any other term or condition of employment.