In Bostock v. Clayton County, the United States Supreme Court was asked to consider whether lawful protections based on an individual’s sex, under Title VII of the Civil Rights Act of 1964, also includes protection from discrimination based on gender identity and sexual orientation. In a landmark decision, the Supreme Court said yes. On Monday, June 15, 2020, the United States Supreme Court held that the protection of individuals based on “sex” includes sexual orientation and gender identity. Justice Gorsuch wrote for majority opinion which was joined by Justices Roberts, Ginsburg, Breyer, Sotomayor, and Kagan.
In Bostock, three individuals were terminated from their employment due to their sexual orientation or gender identity, and each of the three filed a law suit for employment discrimination based upon their status as a member of a protected class. The Supreme Court finding was based solely on the text within the Civil Rights Act of 1964 and its meaning at the time of enactment. The definition of discrimination at the time of the enactment of Title VII, in 1964, remained largely the same in the analysis of the Court’s decision. At issue was the meaning of the word sex and whether sex is – and was – meant to be inclusive of gender identity and sexual orientation, both today and in 1964. Justice Gorsuch’s majority opinion stated that discrimination against LGBT employees “necessarily entails discrimination based on sex; the first cannot happen without the second.” By way of example, Justice Gorsuch provided the following scenario: If an employer has a male employee and a female employee, both of whom are attracted to men, and the employer fires only the male employee based on the fact that the employee is attracted to men, the employer is basing the termination on the male employees sex and such termination is discriminatory. Whether or not Congress could foresee that the protection of individuals based on sex would extend to sexual orientation and gender identity in 1964 should not be part of the analysis, Justice Gorsuch said. Backing his opinion, Justice Gorsuch provided various examples of protections that have been afforded under Title VII litigation that were likely not anticipated that the time of enactment such as sexual harassment and refusing to higher women based on the fact that she had young children but still hiring men who also had young children.
The Bostock opinion is considered a major win for the LGBTQ community but raises substantial questions for employers and their obligations, specifically in states that do not already provide protection for LGBTQ employees.
Q: What does this mean for New Jersey employers?
If you are an employer operating in New Jersey, the answer is that the Bostock decision largely does not affect your obligations. This is because the New Jersey Law Against Discrimination (“NJLAD”) already “prohibits employers from discriminating in any job-related action, including recruitment, interviewing, hiring, promotions, discharge, compensation, and the terms, conditions and privileges of employment” on the basis of any of the protected classes named in the NJLAD. Sex was included as a protected class under the NJLAD as early as the 1970s. Further, the NJLAD was amended in 1992 to include protection for affectional or sexual orientation. This is defined in the NJLAD as meaning “male or female heterosexuality, homosexuality or bisexuality by inclination, practice, identity or expression, having a history thereof or being perceived, presumed or identified by others as having such an orientation.” The NJLAD was amended again in 2006 to include “gender identity” which is defined in the statute as “having or being perceived as having a gender related identity or expression whether or not stereotypically associated with a person’s assigned sex at birth.”
Employers operating under New Jersey state law should continue to engage in non-discriminatory hiring practices and employment decisions. If you have questions as to how your employment obligations change as a result of the Bostock opinion, you should contact an employment attorney for advice.
The Employment Law Practice Group at Cooper Levenson is fully operational and ready to assist you. Please reach out to Amy Rudley, Esq. at (609) 572-7408 or firstname.lastname@example.org in order to schedule a consultation on any employment related issues which you may be encountering.
*Katlin Trout is a Summer Associate in Cooper Levenson’s Atlantic City, New Jersey office.