Takeaways for employers from SCOTUS’ landmark LGBTQ+ ruling

In a landmark 6-3 decision last month, the Supreme Court of the United States expanded existing Title VII workplace protections to LGBTQ+ individuals. The decision provides much needed guidance to employers, many of which have already implemented policies and training to protect LGBTQ+ individuals against discrimination in the workplace.

In Bostock v. Clayton County Georgia, the Supreme Court examined whether Title VII of the Civil Rights Act of 1964 prevents a covered employer from firing someone “simply for being homosexual or transgender.” Writing for the majority, Justice Neil Gorsuch stated the “answer is clear.” According to the Court, discrimination based on sexual orientation or transgender status is a form of sex discrimination under Title VII.

In reaching its conclusion, the Court began by recognizing that Title VII makes it unlawful for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual because of such individual’s sex.

The Court observed that “homosexuality and transgender status are inextricably bound up with sex,” and that “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.” The Court reasoned 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. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”

The decision is a welcomed result for employers in South Florida, a region of the country with one of the largest and fastest growing LGBTQ+ populations in the country. Many South Florida employers have previously implemented policies to protect LGBTQ+ identifying individuals from discrimination in the workplace. The decision provides these employers with clarification on the Title VII protections afforded to members of the LGBTQ+ community in South Florida.

Additionally, while some local ordinances already prohibit discrimination based on sexual orientation (for example, Miami-Dade County’s Human Rights Ordinance, Chapter 11A of the Miami-Dade County Code, as amended, prohibits discrimination based on gender identity), the Supreme Court’s ruling creates long overdue uniformity in protections under federal law. This ruling will result in the same protections for LGBTQ+ individuals across the entire country – as opposed to only in certain cities, counties, and states.

In the wake of the Bostock decision, employers should review their internal policies and procedures to ensure that they conform to the Supreme Court’s ruling. Anti-discrimination policies should clearly prohibit discrimination based on a LGBTQ+ characteristic. Employers must also ensure that hiring decisions, terminations, promotions and other adverse employment decisions are made without regard to an individual’s sexual identity or orientation. It is important that employers take the time to ensure all of their written materials (e.g. employee handbooks and other policies and procedures) are updated to reflect this important change in the law.

In some cases, employers may need to conduct additional diversity and inclusion training for employees. Such training offers an opportunity to provide employees with meaningful context around important workplace issues in a way that is much more impactful and relatable than a black and white employee handbook, policy, or procedure. Implementing these measures will likely decrease confusion in the workplace associated with this new change in the law, which will also result in better and more stable work environments for all employees and fewer claims being filed against employers for alleged discrimination based on what is now a nationally protected characteristic.

Andrew M. Gordon is a partner with the U.S. law firm of Hinshaw & Culbertson, with offices in Miami and Fort Lauderdale. He focuses his litigation practice in the representation of management-side labor and employment matters and may be reached at: agordon@hinshawlaw.com. M. Megan Coughlin is also with Hinshaw. She counsels employers on a wide range of labor and employment matters and may be reached at: mcoughlin@hinshawlaw.com.

This story was originally published July 17, 2020 at 6:00 AM.