By Attorney Anne Daugherty-Leiter
“The answer is clear,” said the U.S. Supreme Court in Bostock v Clayton County, Georgia: Title VII of the Civil Rights Act prohibits employers from discriminating against LGBTQ employees and applicants. Now, LGBTQ people working for employers with at least 15 employees may bring sex discrimination employment claims under federal law in every state. This is because the Supreme Court has finally recognized that firing someone for being LGBTQ is firing that person for an identity or action that the employer would have accepted in a member of a different sex, meaning it is based on sex and prohibited by Title VII.
LGBTQ Wisconsinites now have remedies that were not available to them under state law. Wisconsin’s Fair Employment Act (“WFEA”) forbids employment discrimination based on sexual orientation; however, it does not protect transgender people and the remedies it offers are not as comprehensive at Title VII remedies. For example, Aimee Stephens, the transgender woman who was one of three named plaintiffs in Bostock, could not have brought her case in Wisconsin under WFEA because she would not have been covered. The other two plaintiffs, both of whom were fired for being gay, could have used WFEA had they lived and filed in Wisconsin, but they would have been eligible only for back wages, front pay, potential reinstatement, attorney fees, and costs. To compare, Title VII permits all those remedies plus compensatory and punitive damages that range from $50,000 to $300,000 depending upon employer size.
In addition to being a gamechanger for LGBTQ people in the employment law context, Bostock provides legal support for the anticipated challenges to the Trump Administration’s recently-published changes to the Affordable Care Act. Those changes define sex for purposes of sex discrimination as biological sex only, potentially enabling health care providers to refuse care to transgender, gender non-conforming, and non-binary people. Bostock may help here because the Trump Administration’s claim that sex discrimination includes only biological characteristics and not sexual orientation or gender identity is comparable to the argument the Supreme Court just rejected in Bostock. After all, if “[t]he answer is clear” that protections against sex discrimination in employment includes LGBTQ people, there is a strong chance that the Supreme Court could reach the same conclusion in a case of sex discrimination in another context, including health care.
The Law Center, S.C., has long made protecting the rights of LGBTQ people a central part of our firm. Our employment law practice area provides guidance and representation to both employees and employers seeking assistance with potential discrimination claims. When combined with our in-house expertise in Human Resources advising, we are well-situated to provide staff and manager trainings, handbook and policy review and revision, and other important services for employers of all sizes. Please contact Attorney Anne Daugherty-Leiter with questions regarding how the Bostock decision impacts you, or with any of your employment law needs.