On the Basis of Sexual Orientation in The Workplace

By Terry Ann Campbell, ELS Summer Associate

Seven years ago, Gerald Bostock was fired from his job as a Child Advocate for being gay. Despite his previous years of exemplary service, Mr. Bostock was let go by his employer for actively participating in a gay softball league. Consequently, legal action ensued that ended up in a landmark victory for the LGBTQ+ community just last week in Bostock v. Clayton County.

Two other plaintiffs, Donald Zarda, a skydiver who was terminated for disclosing his sexual orientation to patrons, and Aimee Stephens, a funeral home employee who expressed that she wanted to participate in gender reassignment, were two other cases included in this landmark Supreme Court decision.  Altitude Express, Inc. v. Zarda; R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission.  Unfortunately, Ms. Stephens died in May 2020 and Mr. Zarda died in a BASE jumping accident in 2014.

The Supreme Court Expands Title VII Protections

This past June 15, the Supreme Court, in its 6-3 majority, ruled against discrimination based on sexual orientation or gender identity in the workplace and held that such discrimination was a clear violation of Title VII of the Civil Rights Act of 1964. Specifically, the Supreme Court held that “homosexuality and transgender status are inextricably bound up with sex.” Justice Neil Gorsuch, who led the majority, reasoned that “fir[ing] 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.”

In making this decision, the Supreme Court declined to address claims that this holding would have a larger impact than intended, such as prohibiting sex-segregated restrooms, locker rooms and dress codes. The Court also acknowledged, but did not analyze, the potential impact such a decision would have on the free exercise of one’s religion. This issue will be examined in the upcoming 2020-2021 Term involving the case Fulton v. City of Philadelphia. In this upcoming case, Catholic Social Services (CSS) is challenging the City of Philadelphia’s ban preventing them from placing foster children. The City instituted the ban when CSS refused to license same-sex couples as foster parents, claiming that this goes against their religious beliefs. Back in 2018, CSS sued the City of Philadelphia for violating their right to free exercise of religion and free speech under the First Amendment.    

Workplaces Get Proactive

The Supreme Court’s Bostock decision is now the law of the land.  Unless Congress amends Title VII to exclude transgender employees or sexual orientation, employers will need to review their employee policies and practices. Workplaces are now abuzz. This is a great time for employers to revise their handbooks with the current equal employment opportunity policies and practices that will provide a safe workplace for all employees.  Having a workplace free of discrimination heightens productivity, maintains employee health, increases retention rates, and increases the bottom-line.

The Equal Employment Opportunity Commission (EEOC) has outlined some steps employers should take to comply with Title VII of the Civil Rights Act:

  1. Reviewing employment practices to ensure that they apply to employees equally, regardless of sex, gender and sexual orientation;
  2. Providing outreach, education and technical assistance to prevent employment discrimination from occurring in the workplace;
  3. Encouraging open conversations between people of different backgrounds and sexual orientation; and
  4. Seeking legal counsel to assist with proactive measures to prevent workplace concerns from turning into litigation.

Here at ELS, we assist employers with implementing new policies, practices, and training to address the new protections afforded to the LGBTQ+ community.