In a landmark victory for employees, this week the United States Supreme Court held that Title VII of the Civil Rights Act—the central federal employment discrimination law—protects LGBTQ workers from employment discrimination. Because Ohio employment law does not protect LGBTQ employees from discrimination, the case offers new protections for these Ohio employees.
Title VII makes it illegal for employers to discriminate against workers because of their race, religion, skin color, and sex. Until about five years ago, courts across the country uniformly rejected any argument that the word “sex” in the law included sexual orientation. As a result, although some state laws banned LGBTQ discrimination, it was considered perfectly legal in most of the country to deny employment to gay and lesbian employees. That changed with this week’s 6-3 Supreme Court’s decision.
New workplace discrimination protection for LGBTQ employees
In a majority opinion somewhat surprisingly written by conservative Justice Gorsuch—a Donald Trump appointee—the Court wrote that “An employer who fires an individual merely for being gay or transgender defies the law.” As the Court went on to recognize, one cannot discriminate against a person because of their sexual identity or orientation without discriminating based on their “sex.”
The decision is labeled Bostock v. Clayton County, Georgia but it’s actually three cases that were heard together. Two involved employees who allege they were fired for being gay. The third was brought by a woman who presented as a male when she was hired, and was fired after she told her employer that she planned to live as a female. Sadly, the appeal process took so long that two of the employees passed away since filing suit. But their estates continued to vindicate their rights for the benefit of their heirs and others who face the same bigotry.
In the decision, the Court addressed the argument that prohibiting employers from discriminating against LGBTQ workers may violate some employers’ religious convictions, and noted that the Religious Freedom Restoration Act of 1993 (RFRA), 107 Stat. 1488, codified at 42 U. S. C. § 2000bb et seq. may supersede Title VII. In other words, LGBTQ workers should be concerned that observant employers of certain religious persuasions might be excused from complying with Title VII.
Unanswered questions about LGBTQ discrimination remain
While today’s decision is certainly cause to celebrate, it does not grant any protection beyond the employment relationship. The Civil Rights Act of 1964 has a section that prohibits discrimination in public accommodations (like hotels, restaurants, and hospitals) but that section lists only race, religion, and skin color. It is does include sex—and therefore almost certainly not sexual orientation—as protected categories. Also still unsettled are questions about the rights of transgender employees with respect to bathrooms and locker rooms—issues likely to be decided by future cases.
If you are an Ohio employee and believe you believe were a victim of workplace discrimination because of your sexual orientation, call the Cleveland employment lawyers at Bolek Besser Glesius LLC.