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Rand L. Stephens & Richard Koss

How Will the Supreme Court’s Decision in Bostock Affect Employees in California?

Young woman with books and LGBT flag

The Supreme Court recently issued a landmark decision extending Title VII antidiscrimination protections to claims based on sexual orientation and gender identity. The Court ruled that terminating employers because they are gay, lesbian, or transgender is a violation of the Civil Rights Act of 1964. California law, however, already includes protections against discrimination based on sexual orientation and gender identity. How does the Court’s ruling affect California employers and employees? Continue reading for a discussion of the case and its implications for California, and speak with an experienced California gender discrimination lawyer for help with an employment-related matter.

What Did Bostock Decide?

Title VII of the Civil Rights Act of 1964 prohibits discrimination in the workplace based on an employee’s sex. In recent years, courts around the country had become split as to whether the term “sex” included gender identity and sexual orientation. Some courts had held that “sex discrimination” is limited to direct discrimination against women (or men) in the workplace, such as by refusing to hire women for a certain job. They held the term did not cover discrimination against LGBT employees.

In the landmark case Bostock v. Clayton County, the Supreme Court went the other way: The term “sex discrimination” inherently includes discrimination against a person’s behavior when that behavior would be tolerated by a member of the opposite sex. When an employer fires someone for being a gay man, the employer is firing them for loving, dating, and marrying men; the employer would not have fired the employee had the employee been a woman doing the same. Likewise, when an employer fires someone for being transgender, they are deciding that the employee’s behavior and appearance are not tolerable in a man (or woman), but would be acceptable had the person been born the other sex, biologically speaking. This disparate treatment clearly implicates the employee’s “sex” by any definition of the word.

How Does Bostock Affect California?

Bostock extended sexual orientation and gender identity protections to workplaces across the country. Many states, such as Texas, had never prohibited discrimination on that basis. The opinion has a clear impact on those states, providing protection for gay, lesbian, and transgender workers for the first time. What about California?

California’s Fair Employment and Housing Act (FEHA) already broadly prohibits discrimination based on a person’s genetic information, marital status, sex, gender, gender identity, gender expression or sexual orientation. Since FEHA applies to all employers with five or more employees, California businesses should already be in compliance with the new rule. That being said, employers who violate the expanded Title VII are now subject to both state and federal liability. Employers should take note and should update their antidiscrimination and anti-harassment materials to reflect the clarified purview of Title VII.

Employees facing sex discrimination—which now includes gender identity, gender expression or sexual orientation—can file a claim with either the federal Equal Employment Opportunity Commission (EEOC) or California’s Department of Fair Employment and Housing (DFEH). California employees can now bring their sexual orientation or sexual identity claims in federal court which, in some locales, may be more friendly to employees and lead to larger damage awards. Federal juries can consist of six persons, while California jury trials have 12 jurors. Basically, aggrieved California employees now have more options for relief. Granted, Title VII has damage caps that FEHA does not. Any employee living in California but working remotely for businesses in other states such as Texas can also now rely on Title VII without getting into sticky jurisdictional questions about the scope of California law.

If you are a San Francisco employee or employer in need of advice or representation concerning retaliation, workplace discrimination, or other California labor law issues, contact the Bay Area employment law attorneys Richard Koss and Rand L. Stephens at 650-722-7046 on the San Francisco Peninsula, or 925-757-1700 in the East Bay.

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