On Monday, June 15, 2020, the U.S. Supreme Court published a historic decision in Bostock v. Clayton County, Ga. A 6-3 majority held the prohibition against sex discrimination in employment in Title VII of the Civil Rights Act of 1964 (“Title VII”) includes discrimination based upon sexual orientation. For jurisdictions which had endorsed a contrary view, claims of sexual orientation discrimination under Title VII present new questions.
In many situations, for instance, the information available to an employer allows only a perception of the sexual orientation of an applicant or employee. This information can be appearance, physical mannerisms, speech and interactions with others. This information can also be a second-hand report or a rumor. Predictably, basing a perception on such incomplete information can lead to mistaken assumptions about a person’s sexual orientation.
So is it a defense to a claim of sex discrimination that an employer merely had a perception an applicant or employee was gay? Similarly, is it a defense to a sex bias claim that the employer was mistaken about the sexual orientation of an applicant or employee?