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News & Press: Government Affairs News

Supreme Court Issues Landmark Ruling on LGBT Rights with Profound Implications for Employers

Tuesday, June 16, 2020   (0 Comments)
Posted by: Bradley Coffey, MA, AAOE Government Affairs
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Washington, DC - On Monday, June 15, 2020 the Supreme Court of the United States handed LGBT rights groups a major victory when a 6-3 majority ruled that title VII of the Civil Rights Act of 1964 prohibits employers from firing staff due to their sexual orientation or gender identity. The opinion of the Court in Bostock v. Clayton County (2020), authored by Trump appointed Associate Justice Neil Gorsuch, adhered to the text of the Civil Rights Act and argued that making hiring or firing decisions based on an employee's sexual orientation or gender identity is inherently sex-based discrimination, which title VII prohibits.

The Court's sweeping ruling has major implications for orthopedic practices, beyond just employment decisions. As the Trump administration has interpreted sex-discrimination statutes to consider only biological sex discrimination to be prohibited by title VII, it is likely that previous regulations, including last Friday's rule scaling back the Obama Administration's expansion of the definition of sex discrimination in healthcare settings, will be challenged and possibly overturned. Right now, the Court's ruling only applies to the employer-employee relationship.

Some key takeaways for employers from the Bostock decision include:

  • Gay men, lesbian women, bisexual and transgender men and women are now a protected class under federal law and can pursue title VII relief from federal courts against an employer that discriminates against them. Note that the Civil Rights Act covers employers with more than 15 employees.
  • The ruling also provides relief for employees affected by sex stereotyping (i.e. maltreatment because of the employee's non-adherence to traditional gender roles/norms of behavior) by allowing these claims to support a sex discrimination claim.
    • In other words, firing a lesbian woman because she is "too butch" and not just because the employer does not like lesbians or fears their clientele would have a problem with lesbian women would provide additional evidence against an employer in a federal sex discrimination claim.

Jeana Singleton, JD with the firm Brennan, Manna & Diamond recommends that employers take three actions immediately:

  1. "Perform a complete review of employee handbooks to update the list of protected classes and update other recent changes/ensure legal compliance."
  2. "Perform renewed discrimination and harassment training both on existing protected classes, but also on the newly added classes. Unfortunately, many work places still have cultures allowing commonly used slang that is offensive to the LGBTQ community, so these cultures will need to be corrected through training and education."
  3. "Review employment practices liability (EPL) insurance plans or purchase EPL insurance. We expect to see lawsuits from employees out of this decision, and EPL insurance will help protect the employers' interests."

23 states had statewide protections for LGBT employees prior to the ruling. Most employers in these states will likely already have these policies and procedures in place. 27 states did not have specific protections for LGBT employees, practices in these states should ensure that their policies now reflect the Bostock ruling.

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