On June 15, 2020, the Supreme Court issued a landmark ruling in Bostock v. Clayton County, Georgia, holding that employers violate Title VII of the Civil Rights Act of 1964 when they discriminate regarding a term or condition of employment based on an employee’s gender identity or sexual orientation.

Title VII prohibits workplace discrimination based on race, color, religion, sex, or national origin.  The three plaintiffs in Bostock brought suit against their former employers arguing they were fired merely for being gay or transgender and thus, their termination was based on sex in violation of Title VII. The Supreme Court agreed and held that an employer’s discrimination on the basis of an employee’s sexual orientation and transgender status qualifies as sex discrimination under Title VII.

The Supreme Court’s decision resolves a major circuit split where gay and transgender employees were receiving varying civil rights protections depending on the jurisdiction in which they were employed. Now, the Supreme Court has conclusively held Title VII anti-discrimination law extends to sexual orientation and gender identity.

How is the Federal Standard Different from Existing Sixth Circuit Case Law?

While the decision represents a major change to discrimination law on the national level, some circuits had already extended some Title VII protections to gay and transgender employees, including the Sixth Circuit, which covers Ohio. Prior to Bostock, the Sixth Circuit held that Title VII protections against sex stereotyping extend to LGBTQ employees; however, those protections did not include discrimination merely for identifying as gay or transgender.

In Smith v. City of Salem, the Sixth Circuit Court of Appeals held that discrimination based on non-conformity to gender stereotypes was sex discrimination. In Smith, the lieutenant of the Salem Fire Department notified her superiors of her Gender Identity Disorder (GID) and treatment plan which involved expressing a more feminine appearance. Soon after, her employer subjected her to several medical evaluations and suspended her for 24 hours. The Sixth Circuit held both actions constituted unlawful discrimination because their decisions were motivated by the employee’s gender non-conforming behavior, irrespective of the employee’s identification as transgender. However, the Supreme Court’s decision in Bostock goes even further and extends Title VII protection not just to gender non-conforming behavior, but also to an employee’s sexual orientation and transgender status.

What Does the Bostock decision Mean for Employers?

After Bostock, employers are prohibited from discriminating against employees on the basis of their sexual orientation or transgender status. Employers should update their discrimination and harassment policies in accordance with this decision and institute LGBTQ discrimination training for supervisors and HR personnel.

What About Restrooms, Dress Codes, and Locker Rooms?

The Supreme Court expressly stated that their decision in Bostock does not impact employer policies regarding the use of restrooms, dress codes, locker rooms, or other similar facilities. However, prior case law and EEOC guidance has shed some light on these issues.

Regarding restrooms, the Equal Employment Opportunity Commission (EEOC) issued a decision in Lusardi v. Dep’t of the Army stating that employers must permit transgender employees to access the same-sex communal restroom of their preference and cannot require the use of a single-occupant restroom. In the Lusardi case, a transgender employee requested access to the women’s communal restroom. Her employer instead insisted that the employee use the single-occupant restroom until the employee received gender reassignment surgery; citing potential concerns from other employees. Ultimately the EEOC held that equal access to restrooms is a significant and basic condition of employment, and denying such access constituted unlawful discrimination. The EEOC concluded that employers cannot require transgender employees to use a certain restroom, including single-occupancy restrooms, even if other employees are uncomfortable sharing a restroom with the transgender employee.

The Sixth Circuit addressed dress codes and grooming requirements in Barker v. Taft Broadcasting Co., 549 F.2d 400 (6th Cir. 1977). The employer in Barker instituted a policy requiring different hair care lengths and standards for men and women, but equally disciplined both men and women who violated the policy. The Sixth Circuit held that the requirements were not discriminatory and that employers are permitted to institute and enforce gender-specific dress codes so long as they are equally enforced against all noncompliant employees.

Are There Religious Exemptions?

The Supreme Court in Bostock also emphasized that the traditional religious exemptions that apply under Title VII also apply to employers of gay or transgender employees. Under Section 702(a) of the Civil Rights Act, religious organizations may institute religious standards for employees which are necessary for carrying out their mission. However, non-religious private organizations and private employers in the Sixth Circuit do not have a similar exemption.

More Questions?

The attorneys at Fishel Downey Albrecht & Riepenhoff LLP regularly represent employers in matters involving alleged discrimination and also provide training on these issues.  If you have any further questions, contact one of the attorneys at Fishel Downey Albrecht & Riepenhoff LLP at 614-221-1216.