By: Senior Counsel Camille Stearns Miller and Intern Kayla Allen
“The first duty of society is justice.” – Alexander Hamilton
In its landmark ruling, the U. S. Supreme Court recently held in a 6-3 decision that members of the LGBTQ community are protected by federal law against employment discrimination. This decision resolved three cases: Gerald Lynn Bostock v. Clayton County, Georgia; Altitude Express, Inc., et al., v. Melissa Zarda and William Allen Moore, Jr.; and R.G. & G.R. Harris Funeral Homes, Inc. v. Equal Employment Opportunity Commission, et al. The decision focused on unlawful terminations, but the ruling extends to all employment actions protected under Title VII of the Civil Rights Act of 1964 (“Title VII”).
The ruling hinged on the interpretation of Title VII which prohibits discrimination based on race, color, sex, religion, and national origin. It is the opinion of the court 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. It is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”
The Supreme Court’s decision not only prohibits an employer from refusing to hire or discharging an employee based on LGBTQ status, but also prohibits treating employees differently regarding compensation and other terms or conditions of employment because of the individual’s LGBTQ status.
Employers can still defend against sexual orientation claims. If any employee can establish a prima facie case of discrimination, the employer can defend its actions by articulating legitimate, non-discriminatory business reason(s) for its actions.
As a result of the decision, employers with 15 or more employees (federal law) should at a minimum perform the following acts:
- Evaluate your policies, hiring practices, compensation and other terms and conditions of employment to determine if any bias or discriminatory content exists against LGBTQ employees.
- Review your EEO policies and if needed amend them to include anti-discrimination/harassment provisions based on sexual orientation and gender identity.
- Train management staff regarding the change in the law and how to detect and resolve issues regarding LGBTQ bias with colleagues.
- Discuss with counsel whether benefits such as medical coverage for LGBTQ employees may be necessary based upon the recent ruling.
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