In a landmark decision last week, Bostock v. Clayton County, the Supreme Court ruled 6-3 that federal civil rights law bars employers from discriminating based on sexual orientation or gender identity.
Although neither sexual orientation nor gender identity are cited in the Civil Rights Act of 1964, the majority argued that discriminating based on either necessarily involves discriminating based on sex, which is prohibited by the landmark law.
"It is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex," wrote Justice Neil Gorsuch in the majority opinion.
What does the Bostock decision mean for employers?
For the first time ever, employers with 15 or more employees in the U.S. can be hit with a federal lawsuit for discriminating against LGBTQ workers. Estimates have resulted from various polls showing between 4.5% and 6% of the population identify as LGBTQ (keep in mind this number is low because it doesn’t include individuals in the work force who have yet to come out).
Therefore, another level of accountability has been placed on the employer to protect this minority group. The same steps must now be taken to prevent discrimination against LGBTQ individuals as they previously have for all other persons covered under these various protected class statuses.
It is reasonable to expect an uptick in litigation with potentially millions of of additional workers now covered by federal discrimination law.
What should legal and compliance teams be doing to ensure compliant hiring practices?
Engaging expert employment attorneys to consult with is recommended, i.e. hire L&E outside counsel. Provide those experts existing documentation around company policies and let them advise on how to edit/add/change, etc. A smart choice in hiring outside counsel would be to select a firm with experience in one of the states that already had LGBTQ employment non-discrimination laws -California, New York, etc.
In addition to engaging outside counsel, partner with LGBTQ affinity organizations -Lambda Legal, HRC, ACLU are all examples. While expert legal counsel can address official company policy, these affinity groups can consult and train on employee to employee interaction and best practices.
How will the Bostock decision affect employment litigation?
Consider that until this ruling 27 states had little to no employment protections in place for LGBTQ individuals. Certain federal circuits could see sudden spikes in claims, resulting in stress on the courts in each state within that circuit. That would, of course, depend on how many of those states are part of the 27. Tracking these statistics moving forward, among others, will be interesting.
How should legal and compliance teams react?
I think a good start would be to create a position or assign existing positions to take point on building a detailed plan (e.g. a Diversity Officer and/or Committee). Get organized and make a solid strategy around communication. By circulating messaging around this quickly, employers can start to build credibility as a supporter of this ruling with intentions of fully complying.
One might also speculate on potential changes in office postings and employee rights awareness. The EEOC currently requires employers to post notices describing these Federal laws. However, this ruling does not establish a new law it simply expands the reach of the current law. Would this require existing, posted notices to be edited so they outline the change in scope, or will the current wording suffice?
As is the case with other protected classes, it’s important to make clear to those in positions of power that simply stating that they do not take sexual orientation or gender identity into account in employment decisions may not be enough to protect them from a discrimination claim.
Could past LGBTQ discrimination lead to future litigation?
This question is a bit complicated because we are specifically addressing previous acts of discrimination. Case law re: retroactive effect has gone different ways in different situations. For example, rulings on retroactivity in cases where a law was deemed unconstitutional are very different from this ruling where, again, we are extending the reach of a current law.
The short answer is, there will inevitably be these types of claims for past actions, but we’ll most likely have to wait for another Supreme Court decision to determine what that remedy looks like and how wronged parties can move forward when pursuing acts that occurred before this ruling.