On June 15, 2020, the U.S. Supreme Court ruled that Title VII of the Civil Rights Act of 1964 protects gay and transgender workers from workplace discrimination. Prior to the decision, Title VII prohibited discrimination based on race, color, national origin, religion and sex. The decision adds sexual orientation and gender identity to the classifications protected by the law. According to the Court, “an employer who fires an individual merely for being gay or transgender defies the law.”

The Court’s decision, however, has ramifications that go well beyond the prohibition against firing an employee for being gay or transgender. Consider the following:

• In addition to prohibiting discrimination in hiring, firing and discipline decisions, Title VII also prohibits discrimination in the “terms and conditions” of employment. That means that Title VII protections also extend to training, promotion, leaves of absence and other employment-related matters. As a result of the Court’s decision, gay and transgender employees now are protected from discrimination in their terms and conditions of employment, not just hiring and firing decisions.

• Title VII prohibits harassment based on any of the characteristics protected under the Act (race, color, religion, national origin and sex). As a result of the Supreme Court’s decision, harassment based on an employee’s sexual orientation or gender identity now is illegal under Title VII.

• It also is illegal to retaliate against any employee who exercises rights that are protected by Title VII. This anti-retaliation provision of Title VII now covers employees who, for instance, complain about unfair treatment based on their sexual orientation or gender identity; an employer may not take adverse action against an employee for such complaints.

HOW IS THIS A CHANGE FOR EMPLOYERS?

Twenty-two states and the District of Columbia already have laws that prohibit discrimination based on sexual orientation and, in some cases, gender identity. For employers in those states, the Court’s decision will provide employees with the alternative of bringing lawsuits in federal court where, in most instances, the damages that are available are broader than those available under the state laws. For Wisconsin employers, it should be noted that the Wisconsin law prohibiting discrimination based on sexual orientation does not expressly include gender identity. The Court’s decision will fill that gap in the coverage of the Wisconsin state law.

For employers in states that previously had no state law prohibiting discrimination based on sexual orientation and gender identity, their employees now will have such protection under federal law, provided that the employer meets the 15 or more employee standard for Title VII coverage.

WHAT SHOULD EMPLOYERS DO IN RESPONSE TO THIS CHANGE IN LAW?

• Review written and other policies to ensure compliance with this new legal standard

• Amend equal opportunity, sexual harassment and retaliation policies to make sure that they are up-to-date

• Implement training for managers and others to ensure that they understand and are sensitive to the effects of this change in the law