SCOTUS and LGBTQ: New Employment Protections Nationwide

July 6, 2020 | Current Events | Employment

On June 15, 2020, The Supreme Court of the United States issued its decision in Bostock v. Clayton County.  In a 6-3 decision, the Court found that protections in the Civil Rights Act of 1964 extend to homosexual and transgender employees. Employers across the country may no longer discriminate against LGTBQ employees, linking disparate treatment based on an employee’s sexual orientation or preference to discrimination based upon sex, something explicitly forbidden by the Civil Rights Act.

If I Run a Business in Wisconsin, Does This Affect Me?

Wisconsin state anti-discrimination laws already explicitly prohibit discrimination based upon sexual orientation. Transgender employees have also had success litigating claims as a form of sexual harassment. So, not much should change for employers in Wisconsin. However, companies with employees outside of Wisconsin will need to ensure they are complying with the Bostock decision. These protections apply to not only to decisions to terminate, but to many other decisions as well, impacting hiring, promotions, employee discipline, and workplace culture. Employers should be cognizant of any way that their policies may impact LGBTQ employees or potential employees.

Are There Limitations to This Ruling?

Yes. The Court, as is typical, stated that it did not make any determination on matters such as sex-segregated bathrooms and locker rooms. The Court also did not decide whether the right to a free exercise of religion applies or creates any sort of exception to this rule; it very well may.

What Should Employers Know Going Forward?

The Supreme Court did not mince words in saying that homosexual and transgender employees are protected under the Civil Rights Act. Further, individuals suing for wrongful termination based on a protected class only need to prove that their membership to a protected class was a factor, not the sole or controlling factor leading to termination. For example, a homosexual employee fired for habitually showing up late may still succeed on a discrimination claim if they can show that the termination was even partially motivated by the employee’s sexuality.

Contact Kramer, Elkins & Watt, LLC for information about how this ruling may affect your business.