Discrimination on the Basis of Sexual Orientation and Gender
In a decision that came as a surprise to many, the Supreme Court ruled in Bostock v. Clayton County that the federal statute prohibiting discrimination in the workplace on the basis of “sex” prohibited discrimination on the basis of sexual orientation and gender identity. President Trump appointee Neil Gorsuch wrote the majority opinion for a court divided 6-3. Justice Gorsuch illustrated his reasoning by noting that if a man and a woman are both attracted to men, the only distinction between them is their sex. For an employer to discriminate against the man because he is attracted to men is to discriminate against him for “traits and characteristics it tolerates in a woman.”
Under Massachusetts law, it has been illegal to discriminate in the workplace on the basis of sexual orientation or gender identity since 2012, but twenty-six states did not have equivalent protections. Even in Massachusetts, this decision will have an impact. For instance, in some situations, an employee may be barred from suing under Massachusetts anti-discrimination law by the statute of limitations, but still, be able to sue under federal law. Employees bringing suit under federal law also have the option of bringing suit in federal court.
The widespread media coverage of this decision has also led to heightened awareness by employees their rights and may result in additional employment discrimination litigation. It may be prudent for the employer to take a fresh look at their employment policies to ensure they are up to date.
If we can be of assistance to you, please feel free to reach out to a member of our employment law group.