On June 15, 2020, the United States Supreme Court ruled in Bostock v. Clayton County, Georgia that discrimination based on sexual orientation or gender identity violates Title VII of the Civil Rights Act of 1964. This decision resolves a longstanding split between federal courts and aligns federal law to a number of state and local statutes that already expressly prohibit discrimination based on sexual orientation and gender identity, including Illinois.
Title VII prohibits discrimination in the workplace “because of sex,” among other things. In Bostock, the Supreme Court held that discrimination on the basis of sexual orientation or gender identity is necessarily also discrimination “because of sex.” The Court’s reasoning was fairly straightforward: when an employer fires an employee “for being homosexual or transgender,” the employer “fires that person for traits or actions it would not have questioned in members of a different sex.”
The decision highlighted two examples of discrimination “because of sex.” If an employer fires a male employee for being attracted to a male employee, but takes no action against an otherwise identical female employee who is attracted to male employees, the employer discriminates against the male employee for traits or actions it tolerates in the female employee. Likewise, if an employer fires a transgender female (a person who was identified as a male at birth but now identifies as a female), but retains an otherwise identical cisgender female employee (a person who identified as female and birth and still identifies as female), the employer intentionally penalizes the transgender female for traits or actions that it tolerates in the cisgender female.
Therefore, the Court concluded, when an employer fires or takes adverse action against employees because of their sexual orientation or gender identity, the employer’s conduct necessarily constitutes discrimination “based on sex” in violation of the plain language of Title VII.
In light of this Supreme Court decision, employers should review their employment policies and employee handbooks to ensure their policies clearly prohibit sexual orientation and transgender discrimination. If you have any questions about the new ruling or need assistance reviewing your employment materials, please contact Marcus & Boxerman at (312) 216-2720 or firm@marcusboxerman.com.