Jun 26 2020

June is Pride Month, and this year’s Pride celebration has a special significance for at least two reasons. First, last week, the US Supreme Court, in a landmark 6-3 decision, ruled that Title VII of the Civil Rights Act of 1964 prohibits discrimination in the workplace on the basis of sexual orientation and gender identity. Second, this year also marks the 50th anniversary of the very first Pride March in New York City. 

Each June, Womble Bond Dickinson (US) LLP stands proudly with our LGBTQ+ colleagues and, together, we celebrate the progress our country has made toward liberty, justice and equality for all, regardless of who they are or whom they love.

The following article stems from a Monday, June 22 presentation that took place during the firm’s observance of Pride 2020. 

The first Pride observation took place in June 1970 to commemorate the Stonewall protests one year earlier. In the 50 years since, Brad Sears, Williams Institute Scholar and Associate Dean of Public Interest Law at UCLA, says the struggle for LGBTQ+ equality has seen some setbacks and disappointments for sure, but also many significant advances and achievements.

The most recent of these advances happened just earlier this month, when the US Supreme Court delivered a landmark decision that federal civil rights law prohibits employers from discriminating on the basis of sexual orientation or gender identity. The 6-3 decision extends protections of Title VII of the Civil Rights Act to LGBTQ+ employees.

Sears recently spoke to Womble Bond Dickinson attorneys and staff as part of the firm’s Diversity Speaker Series and its celebration of Pride Month. Womble Bond Dickinson attorney David Carter hosted the presentation. 

Before the US Supreme Court’s ruling in Bostock v. Clayton County, Georgia, 22 states and the District of Columbia extended employment protections to LGBTQ+ Americans. Six other states prohibited discrimination against LGBTQ+ employees in the public sector, while five other states had at least some workplace protections on the basis of sexual orientation. But LGBTQ+ employees in 17 other states still lacked any workplace protections before the Supreme Court’s decision.

The plaintiffs in the trio of cases consolidated as Bostock v. Clayton County included a Georgia welfare advocate, a New York skydiving instructor and a Michigan funeral home employee. All three lost their jobs due to either their sexual orientation or gender identity.

“There are thousands of these stories still happening in the US today,” Sears said, noting that more than half of LGBTQ+ workers report feeling threatened or harassed on the job. He said the Supreme Court’s decision will extend uniform protections to employees in all 50 states.

So what do employers need to know about the Bostock v. Clayton County ruling?

Womble Bond Dickinson Labor & Employment attorney Richard Rainey said, “After years of uncertainty and differing opinions in courts across the country the Supreme Court has made clear that the prohibition against sex discrimination in employment includes a prohibition against discrimination based on sexual orientation or transgender status.  For many employers this will not be as significant as they had already included sexual orientation in their equal employment opportunity policies. Those employers will need to consider whether they expressly add gender identity and transgender status to their policies.  However, those employers that had not yet included any of these categories will certainly need to update their policies to reflect the Court’s opinion.  What will be interesting in the future is whether other statutes that prohibit sex discrimination will be interpreted the same way.”

Beth Tyner Jones, leader of the firm’s Employment Team, said, “The Court’s opinion is direct in its plain reading of the statute.  Despite that approach, we anticipate likely court challenges over religious employer exemptions as well as protections for employees regardless of gender identity.  This opinion really does not discuss protection for transgender people in much detail, and, given recent federal regulatory activity, that is an area likely to be addressed by future decisions.”   

Sears also discussed the history of LGBTQ+ rights in America. As founding Executive Director of the Williams Institute, which he led from 2001 to 2017, he published a number of research studies and scholarly articles on LGBTQ+ issues. This scholarship helped advance many of the legal protections that have come to pass since 2000.

These advances include the 2011 passage of the Don’t Ask, Don’t Tell Repeal Act, which allowed LGBTQ+ Americans to serve openly in the military as well as the 2015 Supreme Court decision in Obergefell v. Hodges that requires all states to recognize same-sex marriages.

Sears noted that along with the legal advances, public opinion has greatly shifted in favor of LGBTQ+ rights during the past two decades.

“In 2000, maybe one-third of people supported marriage equality. Today, in most polls, easily more than two-thirds support marriage equality—and even more support workplace protections,” he said.

Sears’ discussion was presented by Womble Bond Dickinson’s Diversity Committee, chaired by Kevin Lyn.