Know Your Rights: The Supreme Court’s LGBTQ Employment Decision

June 22, 2020

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Photo by: The Gender Spectrum Collection

On June 15, 2020, the United States Supreme Court issued its opinion resolving three employment discrimination cases. Two of those cases — Bostock v. Clayton County and Altitude Express v. Zarda — involved discrimination claims by gay employees, and one, R.G. & G.R. Harris Funeral Homes v. EEOC involved a discrimination claim by a transgender employee, all of whom lost their jobs because of their LGBTQ identities.

The Court agreed with the arguments we have been making for years now — that the existing federal ban on workplace discrimination “because of sex” necessarily includes discrimination because of a person’s sexual orientation or transgender status.

The Court ruled 6-3 in a decision written by Justice Gorsuch for himself and Chief Justice Roberts and Justices Ginsberg, Breyer, Sotomayor and Kagan. Justices Alito, Thomas and Kavanaugh dissented.

Below are answers to Frequently Asked Questions about the decision and what it might mean for you.

_{Please note: This document offers general information only and is not intended to provide legal advice regarding anyone’s specific situation. This is an evolving area of law in which there is bound to be uncertainty. If you have additional questions, have encountered discrimination in the workplace, or are looking for contact information for private attorneys who might advise you, contact Lambda Legal’s Help Desk by visiting lambdalegal.org/helpdesk.}

What did the U.S. Supreme Court decide? What does it mean for lesbian, gay and bisexual workers? What does it mean for employees who are transgender?

The decision means it now is confirmed and clear that the federal law banning workplace discrimination “because of sex” covers and protects LGBTQ workers. The federal law applies to employers with 15 or more employees. It means that LGBTQ people who believe they have been denied a job or promotion, have been paid improperly or denied benefits, severely harassed, or otherwise mistreated because of their sexual orientation or transgender status have the right to file a complaint with the EEOC and seek a remedy.

What is Title VII of the Civil Rights Act of 1964? And why is it important for LGBTQ workers?

Title VII is the employment part of the 1964 Civil Rights Act — the landmark federal law against discrimination. The law made it an unlawful employment practice for an employer to turn away, fire, or otherwise discriminate against a person because of the person’s race, color, religion, sex, or national origin. Contrary to some people’s misunderstanding, Title VII does not specify groups of people who are specially protected (such as African-Americans, women, or Muslims). Instead, it protects everyone from negative treatment at work because of their race, sex, national origin or religion, whatever those characteristics might be for each person. Of course some groups have been and remain much more likely to encounter job discrimination based on one or more of these characteristics. But Title VII protects all of us against these types of mistreatment.

I live in a place with state-level employment protections. How does the Supreme Court’s decision affect my state’s laws?

It doesn’t. The Supreme Court just interpreted the federal law. State law protections remain unchanged. This means that everyone nationwide has protection under federal law against discrimination based on their sexual orientation or their transgender status. And when state laws provide additional protection, people in those states have the additional protections, too. Examples of that are when state law applies to smaller employers or provides more generous remedies for violations than federal law.

I live in a state where one or more federal court decisions had already held that Title VII protects LGBTQ people. So, what does this decision mean for me?

The decision means the protections you already had are confirmed by the Supreme Court. You can be confident the protections are binding and will be recognized and understood more widely both in your state and now nationwide.

Do state and local protections still matter? And how can I find out if there are state or local protections where I live or work?

Yes, state and local protections do still matter because they sometimes give broader protection than federal law, and some state enforcement agencies might work more quickly than the federal Equal Employment Opportunity Commission (EEOC). Organizations that track and publish this information will be updating their reports. For now, you can see information about your state in the Movement Advancement Project’s Equality Maps and you can look up your state in last year’s State Equality Index, published by the Equality Federation and Human Rights Campaign. Because there are thousands of cities and counties in our country and many have local nondiscrimination protections, it is difficult for anyone to keep a current list. If you wonder whether you have employment protections under local law, try looking in the city or municipal code if you have access online or at your local public library. Or you can contact the Lambda Legal Help Desk by visiting lambdalegal.org/helpdesk and we might be able to find out for you.

If your employer has 14 or fewer employees and you live in a state without explicit protections for LGBTQ employees, but with protections against sex discrimination, you might be able to persuade your state’s civil rights enforcement agencies or courts to follow the Supreme Court’s logical analysis and interpret state law the same way. If this might be you, please contact the Lambda Legal Help Desk.

I believe that I experienced anti-LGBTQ discrimination at my job. What can I do?

The answer will depend on where you live, who you work for, and what happened. You can start by looking at the information provided in the Know Your Rights section of our website. Pay special attention to the information about deadlines for filing a complaint with the EEOC or the civil rights enforcement agency of your state. You also might want to look at the information provided on the EEOC’s website. Then, if you have more questions, contact our Legal Help Desk by visiting lambdalegal.org/helpdesk.

I have been in good standing with my employer and have never had any disciplinary actions. Could I lose my job just because I am LGBTQ, even though I’m a good employee?

The decision confirms that LGBTQ workers are protected under federal sex discrimination law against discrimination because of sexual orientation or transgender status. It sends a powerful message to employers that they can be sued and held responsible if they allow that discrimination in their workplace. Unfortunately, history teaches that a clear law does not guarantee that everyone will obey. Discrimination based on race, sex, national origin, religion, age and disability all have continued despite clear federal laws forbidding that conduct. But the law has meant workers who experienced these types of discrimination could seek a remedy, and many have. So the decision means those who experience anti-LGBTQ discrimination will now have the indisputable right to file claims and seek remedies. We hope and expect most employers will adjust to this decision easily because it is well established that a positive, nondiscriminatory workplace culture increases stability and productivity, to everyone’s benefit.

The company where I work is religiously-affiliated. What does this decision mean for me?

The answer probably depends on what kind of organization you work for, whether it receives public funds with nondiscrimination rules attached, what type of work the organization does and what work you do, and perhaps other factors. Some religiously affiliated employers are exempt from federal nondiscrimination laws, and some just wish they were exempt. Also, some jobs with faith-based employers have fewer nondiscrimination protections than others, even when nondiscrimination rules do apply. For example, if you are a member of the clergy or teach religion at a religious school, it is unlikely that you have protections against discrimination. If you would like to discuss your situation with one of our Legal Help Desk lawyers, contact us through lambdalegal.org/helpdesk.

I work in a state with no local or state protections. I am openly LGBTQ and it does not seem to be a problem. Should I be worried?

Because of the Supreme Court’s decision, workers nationwide now have clear protection from anti-LGBTQ discrimination under the federal employment nondiscrimination law. This means you are protected if you work for an employer with 15 or more employees; however, this protection might not apply if you work for a religious organization. If you have questions about how the law might apply in your situation, please contact our Legal Help Desk through lambdalegal.org/helpdesk.

I receive health benefits for my same-sex spouse through an employer plan. Will this decision affect my benefits? How about my benefits for our children?

The Supreme Court’s decision means that employers with 15 or more employees must not treat workers with a same-sex spouse differently from workers with a different-sex spouse. The same is true for workers receiving health insurance coverage for children; however, this protection might not apply if you work for a religious organization. If you have questions about how the law might apply in your situation, please contact our Legal Help Desk through lambdalegal.org/helpdesk.

I am not receiving gender-confirming care through my employer-sponsored health benefits and I live in a state with no local protections. What does this decision mean for me?

The Supreme Court’s decision means that employers with 15 or more employees must not treat workers differently based on their transgender status. This rule should apply to health insurance benefits just as it applies to hiring, firing, promotions, salary, other benefits, and all other terms and conditions of employment. However, this protection might not apply if you work for a religious organization. If you have questions about how the law might apply in your situation, please contact our Legal Help Desk through lambdalegal.org/helpdesk.

I made a complaint of discrimination against my employer with the U.S. Equal Employment Opportunity Commission (EEOC). What will happen with my complaint?

The EEOC must accept and investigate complaints of discrimination due to a person’s sexual orientation or transgender status just the same as it accepts and investigates complaints of other forms of discrimination prohibited under federal law. You should expect the EEOC to follow the normal course for your complaint.

So, what’s next? What can I do to help Lambda Legal and our community seize the momentum and continue to advance civil rights for LGBTQ people?

One important way is to help Lambda Legal build support for the Equality Act, which is a bill in Congress that will confirm the Supreme Court’s decision about how Title VII should be understood and applied. The bill updates the words of the Title VII statute to say explicitly that discrimination based on sexual orientation or gender identity is a form of unlawful sex discrimination. It will make that same change to the parts of the federal laws forbidding sex discrimination in housing, education, health care and access to credit. It also will update in two ways the federal civil rights laws that apply to organizations serving the public, and services provided to the public by private institutions receiving federal funding. These laws currently forbid discrimination based on race, color, national origin and religion. The Equality Act will add protection against discrimination based on sex, sexual orientation, and gender identity to these laws. It also will expand the scope of these laws to cover retail businesses, transportation services, banking and various other types of services. The House of Representatives passed this bill in May 2019. We all need to urge members of the Senate to do the same, and deliver it for White House approval as soon as possible. Everyone in our communities, especially those most vulnerable to discrimination, need and deserve the fair treatment promised by our nation’s civil rights laws.

Another important way to help is to educate yourself further about the work ahead of us. Visit LambdaLegal.org, follow us on Facebook, Twitter and Instagram, and dive in and then share!

And then please help Lambda Legal expand the fight for full legal and lived equality for all LGBTQ people and everyone living with HIV by contributing however you can.