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Posted June 16th, 2020 in Top Stories, Legal Insights with Tags , ,

The Impact of Bostock: LGBT Discrimination is Prohibited in Workplaces. Is Healthcare Next?

The Supreme Court has ruled in Bostock v. Clayton County, Georgia that Title VII of the Civil Rights Act of 1964 protects lesbian, gay, bisexual, and transgender (LGBT) individuals from being discriminated against in employment. The 6-3 opinion consolidates three cases from the Second, Sixth, and Eleventh Circuits, each of which involved individuals fired from their jobs because of either their sexual orientation or gender identity. Each case called the question: Is discrimination because of sexual orientation or gender identity a type of prohibited discrimination “because of sex” under Title VII?

Writing for the majority, Justice Gorsuch stated that it is. “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 plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.” Later in the Opinion, Justice Gorsuch repeated the conclusion more directly: “An employer who fires an individual merely for being gay or transgender defies the law.”

The decision is definitive. Although commentators speculated that the Court might issue a narrow ruling that discrimination on these bases can, under the right facts, be a form of prohibited sex stereotyping under Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), the Court implicitly rejected this fact-specific inquiry. Indeed, Hopkins is cited only once by the majority, and not as part of any sex-stereotyping discussion. Rather, the Court found that Title VII prohibits discrimination on the bases of sexual orientation and gender identity as per se sex discrimination, although the Court did not use the phrase “per se.”

Justice Gorsuch left a roadmap for those unhappy with the decision to challenge it, though. He first reminded readers that “[t]he place to . . . address unwanted consequences of old legislation . . . lies in Congress.” Then, he briefly explored two potential exceptions already written into law. Both exceptions are religious in nature; Title VII carves out claims “concerning the employment relationship between a religious institution and its ministers,” and Congress has separately passed the Religious Freedom Restoration Act (“RFRA”), which the Court referred to “as a kind of super statute, displacing the normal operation of other federal laws.” The Court acknowledged that RFRA “might supersede Title VII’s commands in appropriate cases.”

The full extent of the decision will certainly be the subject of litigation. The Court left little room for interpretation as to the specific holding; employers cannot discriminate because an individual is “homosexual” (as the majority wrote) or transgender. But how far religious exceptions reach, either through Title VII or RFRA, remains to be seen.

Likely the first test will arise outside of Title VII altogether. The Bostock decision comes just three days after the Trump Administration eliminated protections for LGBT individuals in healthcare. On Friday, the Department of Health and Human Services issued a final rule interpreting Section 1557 of the Affordable Care Act, including the ACA’s prohibition on discrimination on the basis of sex. In the final rule, the Department noted and agreed with the Trump Administration’s position that “discrimination on the basis of sex in Title VII and Title IX does not encompass discrimination on the basis of sexual orientation or gender identity.” Therefore, the Department concluded, the ACA’s provision banning discrimination on the basis of sex does not extend to discrimination on the basis of sexual orientation or gender identity.

To be sure, the Department anticipated the ruling in Bostock, and it preemptively prepared for the situation. To insulate itself, the Department rejected the notion that it should wait for the Supreme Court’s ruling, noting that “the binary biological character of sex (which is ultimately grounded in genetics) takes on special importance in the health context.” Time (and imminent litigation) will tell whether the Department’s position withstands judicial scrutiny.

Employers have a duty to ensure compliance with Bostock. Many employers already prohibited discrimination on these bases. The Minnesota Human Rights Act, for example, has long banned discrimination on the basis of both sexual orientation and gender identity. But Bostock presents an opportunity for employers everywhere to review their policies and update them, if necessary, to clarify that employers will not tolerate such discrimination. Trainings should also be updated to reflect this new interpretation of Title VII.

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