On June 15, 2020, The Supreme Court, in a 6-3 decision, held that Title VII, the primary federal statute that protects employees from workplace discrimination and hostile work environment based on various protected statuses, including “sex,” also protects employees on the basis of sexual orientation and gender identity. In some sweeping language, the Court held that “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”
Locally, the District of Columbia, Maryland and many Maryland counties already expressly include sexual orientation and gender identity as protected classes in their antidiscrimination/antiharassment laws. Virginia’s Human Rights Act, which was recently amended by the Virginia Values Act and set to go into effect on July 1, 2020, also includes sexual orientation and gender identity as protected classes. West Virginia’s Human Rights Act, while not expressly identifying “sexual orientation” or “gender identity” as protected classes, does include “sex” similar to Title VII. It remains to be seen if the West Virginia courts will interpret their local law’s prohibitions based on “sex” as including gender identity and sexual orientation consistently with Title VII.
Today’s opinion means that employers nationwide covered by Title VII now face exposure for claims of sexual orientation or transgender discrimination or harassment in the workplace. Even those smaller employers not covered by Title VII better check their local statutes and ordinances because, as we have seen, most now specifically include language protecting employees based on sexual orientation or gender identity, or include language similar to Title VII, which might be interpreted to be consistent with that federal law.
In light of this ruling, employers who have not already done so must ensure that an employee’s sexual orientation or gender identity is not used as a basis for any employment decision. They must also ensure that harassment based on such statuses is strictly prohibited. All mechanisms and procedures that are in place to ensure that the employer complies with EEO laws as relates to race, religion, and any other protected class must be expanded to include sexual orientation and gender identity. This includes not only adopting policies and procedures (or revisiting existing ones) prohibiting discrimination or harassment based upon a person’s sexual orientation or transgender status (including the employer’s perception of the employee’s sexual orientation), the employer must also ensure it is properly training its staff to avoid, recognize and report any violations.
At this time when employment laws are changing so rapidly and notice requirements, policy changes and overall compliance requirements are at their peak, Carr Maloney recommends its clients undergo a complete business audit to ensure compliance with all new and old federal, state and local law requirements. If you are interested in such business audit, please reach out to Tom McCally, Tina Maiolo or Nat Calamis for assistance.
The Court’s Opinion in Bostock v. Clayton County, Nos. 17-1618, 17-1623, and 18-107 can be found here.