As we approach the 60th anniversary of Title VII and near the end of Pride Month, we revisit how the Civil Rights Act has been interpreted to protect at least some LGBTQ+ rights.
Title VII of the Civil Rights Act of 1964 (which generally applies to private-sector employers) states that it is “unlawful . . . for an employer to fail or refuse to hire or to 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 … sex.”
While over the years, bills were introduced in Congress to expand these protections, such as the proposed Employment Non-Discrimination Act which would have specifically prohibited employment discrimination based on someone’s actual or perceived sexual orientation or gender identity, none of these bills passed both chambers.
However, in June 2020, the US Supreme Court clarified the reach of Title VII in Bostock v. Clayton County, holding that sexual orientation and transgender status “are inextricably bound up with sex,” and therefore Title VII prohibits employment discrimination based on sexual orientation and transgender status.
Many state and local laws already recognized protections for LGBTQ+ employees for years prior to Bostock, with much greater specificity. For example, New York City law prohibits employers from discriminating on the basis of (among other protected categories), “gender,” “sexual and reproductive health decisions,” and “sexual orientation.” Further, “gender” is defined to include “actual or perceived sex, gender identity and gender expression, including a person’s actual or perceived gender-related self-image, appearance, behavior, expression or other gender-related characteristic, regardless of the sex assigned to that person at birth” and sexual orientation “means an individual’s actual or perceived romantic, physical or sexual attraction to other persons, or lack thereof, on the basis of gender” including but not limited to “heterosexuality, homosexuality, bisexuality, asexuality and pansexuality.”
In the spirit of the Civil Rights Act and Pride Month, a reminder to employers to make decisions based on business needs and circumstances, without regard to any protected classes or other factors unrelated to the business, such as sexual orientation and gender identity.