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Developments in the Law on Protections for LGBTQ+ Employees

The Supreme Court’s ruling in Bostock v. Clayton County,140 S. Ct. 1731, 1754 (2020) that expanded the prohibition against sex discrimination under Title VII (“Title VII”) of the Civil Rights Act to include discrimination on the basis of sexual orientation and gender identity has had significant implications for state anti-discrimination laws. Over the past two years, several states have announced their intent to enforce their own anti-discrimination laws in accordance with Bostock rationale.

Under Title VII, employers with at least fifteen employees are prohibited from taking adverse employment action against an individual, including refusal to hire, “because of…sex.”[1] Traditionally, courts have interpreted Title VII’s protection against sex discrimination as extending only to an employee’s gender assigned at birth. However, in 2012, the Equal Employment Opportunity Commission (“EEOC”) expanded the protection to include gender identity. The EEOC came to this conclusion after considering an appeal in which an employer eliminated their employee’s position after learning of the employee’s transgender status.[2]

On June 15, 2020, following a circuit split on whether Title VII extended to LGBTQ+ employees, the Supreme Court held that “[a]n 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.” See Bostock, 140 S. Ct. at 1737. Thus, discrimination based on sexual orientation or transgender status necessarily involves discrimination on the basis of sex, and LGBTQ+ employees are protected from employment discrimination under Title VII.

Two years after the Supreme Court’s decision, the First Circuit has yet to apply Bostock in relation to the newly protected class of employees. Indeed, prior to Bostock, each state within the First Circuit passed anti-discrimination laws that extend protections against discrimination to LGBTQ+ individuals. For example, Rhode Island state law has protected individuals from discrimination in housing, employment and public accommodations on the basis of sexual orientation since 1995. The state updated its anti-discrimination law to include gender identity and expression in 2001.[3] Accordingly, LGBTQ+ employees in Rhode Island are protected against sex discrimination by both state and federal law.

Additionally, in the wake of Bostock, states that lacked explicit anti-discrimination protections for LGBTQ+ employees, such as Pennsylvania, Ohio, and Florida, are now following the Supreme Court’s ruling in interpreting their civil and human rights laws.[4] As such state laws often regulate smaller employers, states adopting Bostock rationale have widened the scope of anti-discrimination protections to individuals that were not previously covered under Title VII.

In light of the Court’s ruling, the EEOC issued guidance on the protections against employment discrimination on the basis of sex.[5] Per this guidance, employers should review their policies and procedures on hiring, fringe benefits, promotion, dress code, and discipline to encourage a work environment that is free from discrimination based on sexual orientation and gender identity.[6] Employers should also train their human resources personnel to ensure compliance with the federal law.[7] Additional guidance will likely follow, as LGBTQ+ advocates work to effect change in the 27 states that lack explicit prohibitions against discrimination in employment, housing, and public accommodation on the basis of sexual orientation or gender identity.[8]

[1] Civil Rights Act of 1964 § 7, 42 U.S.C. § 2000e et seq (1964)

[2] Mia Macy v. Eric Holder, EEOC Doc. 120120821, 2012 WL 1435995, at *11 (E.E.O.C. 2012).

[3] 28 R.I. Gen. Laws Ann. § 28-5-7 (2001)

[4] Jon Davidson, How the Impact of Bostock v. Clayton County on LGBTQ Rights Continues to Expand, ACLU, (June 15, 2022) https://www.aclu.org/news/civil-liberties/how-the-impact-of-bostock-v-clayton-county-on-lgbtq-rights-continues-to-expand

[5] EEOC, Protections Against Employment Discrimination Based on Sexual Orientation or Gender Identity (June 15, 2021) https://www.eeoc.gov/laws/guidance/protections-against-employment-discrimination-based-sexual-orientation-or-gender#_edn1

[6] Id.

[7] Id.

[8] GLAAD, Movement Advancement Project-Equality Maps: Employment Nondiscrimination Laws (July 1, 2022) https://www.lgbtmap.org/equality-maps/non_discrimination_laws.

About The Author

Celina M. Andrade

Celina is a member of the firm’s litigation group. Her practice focuses on commercial litigation, labor and employment law, and healthcare… Read More

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