By: Mike Coffey
On Monday, the United States Supreme Court unexpectedly banned workplace discrimination against LGBTQIA employees in Bostock v. Clayton County.
This is a great victory for advocates of equal rights for the LGBTQIA community. But the decision’s impact on individuals will depend largely on who they work for.
Title VII of the Civil Rights Act of 1964 prohibits employment discrimination “because of such individual’s race, color, religion, sex, or national origin.” In Bostock, Judge Gorsuch wrote for the majority of Justices:
Sometimes small gestures can have unexpected consequences. Major initiatives practically guarantee them. In our time, few pieces of federal legislation rank in significance with the Civil Rights Act of 1964. There, in Title VII, Congress outlawed discrimination in the workplace on the basis of race, color, religion, sex, or national origin. Today, we must decide whether an employer can fire someone simply for being homosexual or transgender. The answer is clear. An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.
In other words, the only difference between the woman who loves men and the man who loves men is their sex and employment discrimination based on sex is illegal under Title VII.
Title VII only applies to employers with “fifteen or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year.”
As most domestic employers do not meet this criteria, this new discrimination ban will not protect many LGBTQIA nannies, house managers, and other household staff members.
However, some LGBTQIA nannies will benefit from these protections.
Beyond those working for larger estates with 15 or more employees, LGBTQIA individuals who are employed by nanny agencies or other organizations (professional employer organizations, PEOS, for instance) may now be protected under Title VII so long as those organizations have 15 or more employees.
But what about when a family specifically requests that a nanny agency not send them an LGBTQIA nanny?
Title VII allows discrimination based upon sex when there is a bona fide occupational qualification (BFOQ), meaning employers can discriminate based upon sex when sex is a critical piece of the job.
For instance, courts have agreed that sex is relevant when hiring guards for female prisons because of the intimate contact guards may have to have with prisoners.
However, the Equal Employment Opportunity Commission’s regulations state that “the preferences of coworkers, the employer, clients or customers” is not a BFOQ. (But the 15-employee consideration would still apply.)
This is, of course, a new interpretation of Title VII and there will undoubtedly be test cases for various BFOQ claims made by employers.
Nannies and employers should also remember that many state and local governments already have anti-discrimination regulations in place that protect LGBTQIA—many of which cover all employers, regardless of size.
The Bostoc decision will likely be a source of rejoicing for many LGBTQIA people and their allies. However, nannies and other domestic employees working for employers with fewer than 15 employees should understand the potential consequences of coming out to their employers.
Mike Coffey is a dual-certified human resources consultant and owns PFC Caregiver Screening. Nothing in this article should be taken as legal advice and employers should always consult with their legal counsel before creating new policies—particularly in areas of developing law.
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