Harassment and Discrimination Based on Sexual Orientation and Transgender Issues Prohibited by Title VII

Harassment and Discrimination Based on Sexual Orientation and Transgender Issues Prohibited by Title VII

Key Points

  • Prior to the June 2020 Supreme Court ruling, differences existed in some of the United States’ Courts of Appeals opinions regarding the illegality of discrimination in the workplace on the basis of sexual orientation and transgender status.
  • U.S. Supreme Court now has ruled that federal protection against sex discrimination in the workplace includes discrimation on the basis of sexual orientation and transgender status.
  • In this case, protected discrimination also includes harassment against individuals with these protected characteristics. This expands the federally protected classes.

For years, federal district courts and the various U.S. Courts of Appeals have issued conflicting opinions regarding the protected status of sexual orientation and transgender issues (including gender identity) under Title VII of the Civil Rights act of 1964. This has led to questions about the legality (or lack thereof) of discrimination and harassment on the basis of sexual orientation and/or transgender issues under federal law, and has led to courts applying Title VII differently from jurisdiction to jurisdiction. That confusion was cleared up on June 15, 2020, when the United States Supreme Court broadly held in Bostock v. Clayton County, Georgia that Title VII’s prohibition on discrimination on the basis of sex includes protection for gay, lesbian and transgender employees. 

Although twenty-two states (plus Washington, D.C.) have anti-discrimination laws that have long protected LGBTQ employees from workplace discrimination and harassment, until June 15 the Supreme Court had never issued an opinion as to whether LGBTQ employees were protected by Title VII. Justice Neil Gorsuch’s opinion unequivocally stated that LGBTQ employees are protected by Title VII’s protection from discrimination “on the basis of sex” when he stated “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.” 

The June 15 ruling has substantial implications for anti-harassment and discrimination training. Although each of the eight jurisdictions currently requiring employers to conduct sexual harassment prevention training already have laws prohibiting discrimination and harassment on the basis of sexual orientation and transgender issues, a great number of states who recommend training for all employees do not. This means that general courses will need to be updated to reflect the fact that this type of discrimination is not only inappropriate, but also illegal under federal law. Syntrio is well-prepared for this change, and has been following Bostock as it made its way through the federal court system and to the United States Supreme Court. Changes to our courses to accurately reflect the new status of the federal law are already underway.

The Bostock decision should be hailed as a significant victory for the LGBTQ community in its fight for equality. While the decision only applies to discrimination in the workplace, it certainly allows for further challenges to other forms of harmful discrimination. Nevertheless, LGBTQ employees can take comfort in knowing that employment discrimination for being gay, lesbian, bisexual, transgender, queer, or any other related sexual identity is illegal throughout the United States. 

Like a number of famous civil rights cases such as Brown v. Board of Education and Roe v. Wade, Bostock v. Clayton County, Georgia will be synonymous with civil rights progress. The decision reached by the United States Supreme Court will be remembered as a significant one in the LGBTQ community’s fight for equality, and celebrated as a long-awaited victory in the Court after a number of refusals to either hear argument on the issue at all or issue anything more than a narrow holding sidestepping the bigger issue. Syntrio is proud to share the news of this victory and is happy to discuss continued training on this and other civil rights issues that may be impacting your workforce.

Since 2007, Jonathan has practiced labor and employment law, with a focus on litigation, individual plaintiff and class action discrimination, harassment, and other employment-specific cases as well as focusing his practice toward advising employers on preventive practice. Jonathan has presented over 100 live employment discrimination and harassment prevention training courses across all 50 states.

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