On June 15th in a 6-3 decision the Supreme Court held in Bostock v Clayton County, GA that Title VII prohibits discrimination against gay and transgender employees. Writing for the majority Justice Neil Gorsuch based the opinion on the fact that Title VII prohibits discrimination on the basis of “sex”. In the very first paragraph of the majority opinion Justice Gorsuch wrote:
“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. Sex necessarily plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”
While this is a groundbreaking ruling, the Court did not resolve all legal issues involving gay and transgender rights. Justice Gorsuch noted that employers with strong religious objections to these rights might have some protection under the Religious Freedom Restoration Act of 1993 (RFFA). In 2014 the Supreme Court held that under the RFFA Hobby Lobby did not have to pay for insurance coverage for contraception under the Affordable Care Act because doing so violated Hobby Lobby’s religious freedom.
In Bostock the Court also declined to address whether an employer violates Title VII by requiring sex segregated bathrooms and locker rooms and sex specific dress codes. The opinion is expressly limited to a situation where an employer fires an employee for being gay or transgender.
To ensure compliance with this change in the law employers should update their EEO, Anti-Harassment and other similar policies to ensure that gay and transgender employees are expressly protected.