The Bostock Decision: How The U.S. Supreme Court’s Ruling on Sexual Orientation and Transgender Discrimination Impacts Wisconsin Employers

In a trio of cases decided on June 15, 2020, collectively referred to as Bostock v. Clayton County, Georgia,[1] the United States Supreme Court held for the first time that Title VII of the 1964 Civil Rights Act prohibits employers from discriminating against their employees/applicants on the basis of their sexual orientation and/or transgender status.  As succinctly stated near the end of the majority opinion, it is now understood that “[a]n employer who fires an individual merely for being gay or transgender defies the law.”   

Of course, as Wisconsin employers know, Wisconsin already prohibited employment discrimination based upon sexual orientation under the state’s Fair Employment Act.  In addition, the 7th Circuit previously held in Hively v. Ivy Tech Community College, 853 F.3d 339 (7th Cir. 2017), that Title VII’s prohibition on sex discrimination extended to sexual orientation discrimination.  However, although there are some county and city ordinances that prohibit gender identity-based discrimination in certain pockets of the state, Wisconsin does not currently have any statewide employment-related prohibition relating to a person’s transgender status.  As a result of the Supreme Court’s decision in Bostock, it is now clear that all Wisconsin employers with fifteen or more employees are prohibited from engaging in transgender discrimination, regardless of where the employers operate within the state.

Moreover, the Supreme Court’s decision makes clear that the damages available to individuals who are subjected to sexual orientation or transgender discrimination in the employment context (by employers with at least fifteen employees) are significantly broader than the damages employers knew to be available for violations of Wisconsin discrimination law.  Under existing state law, employees who are subjected to sexual orientation discrimination can receive only back wage and front pay damages, potential reinstatement, and/or attorneys’ fees and costs.  In contrast, Title VII provides victims of discrimination with the opportunity to obtain all of these same categories of damages, but also enables plaintiffs to obtain compensatory and punitive damages in amounts up to $300,000, based upon the size of the employer.  Although there were reasons to believe that victims of sexual orientation and/or transgender discrimination could have obtained these enhanced damages under federal law previously, the Bostock decision now highlights that those damages are in fact available.     

I expect that the Bostock decision will ultimately lead to an increase in federal employment discrimination claims made against Wisconsin employers.  In an effort to combat any increased risk of liability relating thereto, I would strongly recommend that employers update their handbooks to reflect the clarified legal landscape, including by specifically prohibiting transgender discrimination in connection to the workplace.  In addition, I would recommend that employers consider holding one or more training sessions for management personnel in order to flag the issues and ensure that their workforces have a full understanding of applicable law. 

Please contact John Gardner or any other member of DeWitt’s Employment Relations practice group if you have any questions with respect to the Bostock decision and/or its impact on your business.