The U.S. Supreme Court officially declared the same civil rights protections afforded to cisgender male and female Americans on the basis of their biological sex also apply to LGBT people.
The decision has sent shockwaves throughout the legal and political world, as the ruling now extends those protections for LGBT people against discrimination in employment, and potentially other forms of discrimination, throughout the country.
And the decision should make employers – particularly those who presume they are protected from lawsuits under religious freedom provisions in the U.S. Constitution or other federal and state laws – take note of new heightened legal risks.
“It is not only symbolic, but also has a practical impact on employers everywhere,” said Gerald Maatman, an attorney and partner at Seyfarth Shaw, in Chicago.
On June 15, nearly four years to the day since the high court ruled same sex couples had a constitutional right to marry, the Supreme Court recognized that sex discrimination protections in Title VII of the federal Civil Rights Act also should be read to include discrimination against lesbian, gay, bisexual and transgender people.
By a 6-3 margin, the justices rejected assertions the term “sex” should be narrowly defined by the understanding of the word held by the representatives and senators who approved the measure in 1964, or strict definitions of binary male-female gender identity aligning with one’s anatomy.
The decision in the case known as Bostock v Clayton County was authored by Associate Justice Neil Gorsuch, who was appointed to the court by President Donald Trump.
The decision was celebrated by progressives across the country, particularly the surprise of having two conservative justices – Gorsuch and Chief Justice John Roberts – join in the majority.
In a statement issued by the ACLU of Illinois, John Knight, the organization’s LGBTQ & HIV Advocacy Project Director, said the decision was “a crucial victory for LGBTQ people – a group that continues to face widespread discrimination in the workplace and in many other aspects of our lives.”
Knight said, however, there was “still work to do.”
The ACLU called on Congress to pass legislation known as the “Equality Act,” which they said would “put an end to other types of discrimination LGBTQ people continue to face.”
The Bostock decision, however, was sharply criticized by social conservatives, and particularly religious conservatives.
Those conservatives have expressed concern over the possibility of the Equality Act passing, as it includes no religious freedom protections for those with religious objections.
While that legislative fight may still loom in the next Congress in 2021 and beyond, observers, like Maatman and Whitman Briskey, an attorney with the Chicago firm of Mauck & Baker, predicted the Bostock decision alone will bring a new wave of new kinds of lawsuits against employers.
In Illinois, LGBT people have enjoyed employment discrimination protections since 2016, when the state enacted legislation specifically forbidding such discrimination.
However, employers in Illinois should now be aware that the expansion of Title VII to include LGBT people will also place them at risk of actions launched by federal agencies, including the Equal Employment Opportunity Commission, said Maatman.
“The weight and power of the EEOC is far more serious in terms of litigation risks for employers than uneven, piecemeal, and sometimes ineffectual enforcement at the state and local level,” said Maatman. “When the power of a federal agency is put into play as a litigant, it is akin to holding a tiger by the tail.
“EEOC lawsuits can be very challenging for employers.”
In other actions, for instance, the EEOC has turned individual claims of racial or sex discrimination into full-blown enforcement actions, at times combing companies’ records for evidence of disparate treatment or patterns of discrimination. That can place those employers at risk not only of lawsuits, but of regulatory fines and civil penalties, as well.
Briskey said the immediate impact may particularly be felt by smaller businesses in states that had not yet enacted civil rights protections for LGBT people, or by “those few large businesses who have not adopted ‘progressive’ policies.”
The Bostock decision, he said, “encourages activists to litigate.”
“Small employers cannot afford to pay or defend, and will have to roll over,” Briskey said. “It may become a full-employment law for lawyers bringing these types of cases as plaintiffs push the envelope.”
In the longer term, Briskey said religious employers likely are at particular risk following the Supreme Court’s ruling.
Briskey said actual churches may yet be afforded some legal protections, even in Illinois. He noted the so-called “ministerial exception,” giving churches broad latitude on their ability to hire and fire in alignment with their beliefs and doctrinal positions, has been affirmed 9-0 by the Supreme Court.
Litigation, however, could still be brought.
“The litigation will be over who is a minister,” Briskey said.
Maatman said church-affiliated hospitals and health care systems, for instance, could be targets for such litigation.
Briskey added religious schools and so-called “parachurch organizations,” such as Christian charities and disaster relief organizations, missions organizations, publishers, broadcasters and social activist groups, also could be targeted.
“It is my sense that the activists want to personally go after anyone who does not express agreement, let alone expresses disagreement, with their position,” Briskey said. “It will happen first with religious schools, then parachurch organizations and finally churches themselves. And they will pick out the weaker churches who will not want to, or cannot, spend the money to defend.”
In the Bostock decision, Gorsuch all but indicated the Supreme Court expects to see a range of such cases, centering on the interplay of Title VII and religious freedom protections.
“We are also deeply concerned with preserving the promise of the free exercise of religion enshrined in our Constitution; that guarantee lies at the heart of our pluralistic society. But worries about how Title VII may intersect with religious liberties are nothing new,” Gorsuch wrote.
“…But how these doctrines protecting religious liberty interact with Title VII are questions for future cases too.”
For now, Briskey recommended religious organizations concerned over litigation and regulatory enforcement actions begin immediately “affirming religious functions of all employees and religious faith requirements for all employees.”
“Even a janitor must present the Messiah to everyone he meets in his employment capacity,” Briskey said.