In a landmark decision, Bostock v. Clayton County, the Supreme Court last week ruled that the ban in Title VII of the Civil Rights Act on sex-based bias includes sexual orientation and gender identity, such that gay and transgender workers are protected by the federal anti-discrimination law. Under this ruling, an employer violates Title VII, which makes it unlawful to discriminate against an individual “because of” their sex, by firing or taking any other adverse employment action against an employee merely for being homosexual or a transgender person.

Of note, at the end of his opinion, Justice Neil Gorsuch recognized an employer’s potential religious concerns with complying with the law, and briefly addressed three Title VII exceptions that will “merit careful consideration” in future cases. Specifically, Title VII includes an express statutory exception for religious organizations that would give churches, religious schools and faith-based employers the right to deny employment to workers of other faiths. The “ministerial exception” prohibits priests, religious teachers and other “ministers” from bringing job discrimination claims against their employers on First Amendment grounds. The Religious Freedom Restoration Act bars the government from infringing a person’s religious rights unless it has a good reason for doing so and does so in the “least restrictive” way. Justice Gorsuch made clear that none of the employers in the Bostock case attempted to argue that compliance with Title VII would infringe on their own religious liberties in any way, leaving the door open to employers to attempt to assert religious defenses to gay and trans workers’ claims in the future. Employers should note, however, that these defenses are narrowly applied and will not apply to or will be very difficult to prove by most private employers, based upon previous decisions that have applied the exceptions.

Employers should review their handbooks and anti-discrimination policies to ensure compliance with the Bostock opinion. Sullivan Collins Law Group is available to assist employers in ensuring that their policies and actions comply with Title VII and other federal and state laws.