The United States Supreme Court issued a landmark decision on June 15, 2020, in the case of Bostock v. Clayton County, ruling that the prohibitions against discrimination “because of sex” contained in Title VII of the Civil Rights Act of 1964 (Title VII) extend to protect gay and transgender employees against workplace discrimination.
Title VII of the Civil Rights Act of 1964 expressly prohibits employment discrimination on five specified grounds: “race, color, religion, sex, [and] national origin.” However, neither “sexual orientation” nor “gender identity” appears on that list. The question before the Supreme Court was whether “sexual orientation” or “gender identity” are protected categories that should be afforded protection under Title VII.
In a 6-3 decision, the Supreme Court held that Title VII does protect LGBTQ employees. Because discrimination on the basis of sexual orientation or gender identity requires an employer to intentionally treat individual employees differently because of their sex, an employer who intentionally penalizes an employee because of sexual orientation or gender identity also violates Title VII. Therefore, employers are prohibited from adversely affecting the employment of their employees because of their sexual orientation or gender identity, as they necessarily entail discrimination based on sex.
Both the New York State Human Rights Law and the New York City Human Rights Law include sexual orientation in their prohibited bases for discrimination and therefore many New York employers may already have workplace policies prohibiting discrimination based on sexual orientation and gender identity. Employers should carefully evaluate their employment policies and procedures to ensure that sexual orientation and gender identity are categories upon which discrimination and harassment are prohibited in the workplace.