On June 15, 2020, the U.S. Supreme Court issued a 6-3 decision holding that Title VII of the Civil Rights Act of 1964 protects gay, lesbian, and transgender employees from discrimination in their employment. 590 U.S. __ (2020).
The Civil Rights Act of 1964, § 2000e-2(a)(1), states that it is “unlawful…for an employer to fail or refuse to hire or discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.”
The characteristic at issue in Bostock was “sex.” 590 U.S. at *5. The parties disagreed as to whether firing an employee based upon their LGBTQ status was related to “sex.” Id. Court in Bostock explained: …it is impossible to discriminate against a person being homosexual or transgender without discriminating against that individual based on sex. Consider, for example, an employer with two employees, both of whom are attracted to men. The two individuals are, to the employer’s mind, materially identical in all respects, except that one is a man and the other is a woman. If the employer fires the male employee for no reason other than the fact he is attracted to men, the employer discriminates against him for traits or actions it tolerates in his female colleague. Id. at *9.
The case of Bostock v. Clayton County was actually three cases from three different circuit courts that were consolidated for review by the Court. As stated, each of the three plaintiffs were fired from their positions for being gay or transgender. Gerald Bostock, a 10-year child welfare advocate with Clayton County, GA who had led the county to national awards, was terminated from his position shortly after he joined a gay softball league. Donald Zarda, who had worked for his employer as a sky diving instructor for several seasons, was fired after he mentioned that he was gay. Aimee Stephens worked as a funeral director. At the time of her hire, she presented as a man. Six years into her employment, Ms. Stephens informed her employer that she intended to live and work as a woman full-time. She was terminated shortly after. All three plaintiffs claimed that they were fired for being gay or transgender. The employers did not disagree that the plaintiffs were fired for being gay or transgender but argued that the law did not prohibit the terminations.
Nearly half of the states in the U.S. do not expressly outlaw employment discrimination based upon gay, lesbian, or transgender status. However, after the Bostock decision, all LGBTQ employees in every state are protected under federal law from unlawful discrimination in their employment.
Employers in Washington and Idaho have likely been prohibiting discrimination based upon LGBTQ status even before the Bostock decision. The Washington State Law Against Discrimination has prohibited discrimination based on sexual orientation and gender identity since 2006. While the Idaho Human Rights Act does not expressly prohibit discrimination based upon LGBTQ status, numerous Idaho municipalities and some counties have local laws that protect LGBTQ employee rights. Moreover, the Ninth Circuit (of which Idaho is a part) recognizes protection under federal law for LGBTQ employees. To that end, even without a specific state law protecting employees from discrimination, Idaho LGBTQ employees likely were covered by anti-discrimination laws prior to Bostock.
Accordingly, the Bostock case will not change Washington employer’s obligations related to avoiding discrimination and likely just clarifies protections in Idaho. Nevertheless, employers should take the time to review all handbook discrimination provisions, policies, procedures, and practices to ensure that they comply with the current state of the law. Likewise, it may be a good time to refresh discrimination and harassment training for managers, supervisors, and employees.