Tuesday, June 16, 2020

SCOTUS: Title VII prohibits sexual orientation and gender identity discrimination

Yesterday, the Supreme Court decided Bostock v. Clayton County - the Supreme Court website has been having trouble, so this is a link to SCOTUSblog (which excluded the appendices to make the file smaller). 

The Court consolidated Bostock and a couple others to address both sexual orientation and gender identity. Long story short, Justice Gorsuch authored a textualist 6-3 majority opinion:
In Title VII, Congress adopted broad language making it illegal for an employer to rely on an employee’s sex when deciding to fire that employee. We do not hesitate to recognize today a necessary consequence of that legislative choice: An employer who fires an individual merely for being gay or transgender defies the law.
Many jurisdictions already recognized sexual orientation or gender identity as protected classes. Now, the entire nation is covered - at least employers with 15 or more employees (who are therefore covered by Title VII). 

There may be some employers that are covered by state laws but not Title VII. For example, Pennsylvania employers with 4-14 employees fall under the PHRA, but not Title VII. And, the PHRA protects "sex" but not expressly sexual orientation of gender identity. Pennsylvania courts could conclude that the PHRA does not apply to sexual orientation and gender identity. Given Bostock, and my read on PA appellate courts currently, I doubt that will happen. But, we may still see it in other states. 

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