Before this conclusion, Title VII of the Civil Rights Act of 1964 protected workers from sex-based discrimination. This defense, however, was limited to discrimination based on if the individual was a man or a woman. The Bostock decision (of June 15, 2020) explains the definition of “sex” because used in Title VII automatically protects sexual orientation and transgender status too.
In the country level, only 22 states and D.C. acknowledged employment discrimination based on both sexual orientation and gender identity as illegal prior to the Bostock opinion. North Carolina wasn’t among those states. North Carolina’s General Statute § 143-422.2(a) protects workers from adverse actions based on gender, but “gender” has been limited to sex. As the Supreme Court clarifies, “gender” unequivocally holds sexual identity and gender identity under Title VII.
Since North Carolina hasn’t historically shielded these classes, companies should look at upgrading policies, handbooks, and anti-discrimination instruction to reflect this shift and notify employees of the rights and expectations at work. Human resources officers should look at upgrading their practices addressing internal discrimination complaints based on sexual orientation or gender identification. Employers must also operate to protect against a hostile work environment on the grounds of sexual orientation or transgender status as they do with different classes protected under Title VII, for example, race. Companies need to investigate complaints of discrimination based on sexual orientation or gender identification.
A possible grey place in this decision comes in the form of religious liberties. The Religious Freedom Restoration Act also adds to religious protections by forbidding the federal government from “substantially burdening an individual’s exercise of religion unless it shows that doing this equally furthers a compelling governmental interest and represents the least restrictive way of furthering that interest.” The Court left unanswered the question of exactly what impact this exemption as well as the Religious Freedom Restoration Act have about the Bostock opinion and on companies.
As Justice Gorsuch succinctly stated from the Bostock view,” An employer who fires someone only for being homosexual or bisexual defies law”