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September 22, 2020

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A “Simple But Momentous” Decision: LGBTQ Rights Are Protected By Title VII

“An employer who fires an individual merely for being gay or transgender violates Title VII.” There it is. Simple. Direct. Clear. Groundbreaking.

In its landmark decision issued June 15, 2020, the Supreme Court of the United States ruled in Bostock v. Clayton County, Georgia that Title VII of the Civil Rights Act of 1964 protects, gay, lesbian, and transgender employees from discrimination in employment.

Writing for a 6-3 majority of the Court, Justice Neil Gorsuch made several powerful statements in the Court’s historic decision. He wrote:

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.

The Court further expressed: “[b]ecause discrimination on the basis of homosexuality or transgender status requires an employer to intentionally treat individual employees differently because of their sex, an employer who intentionally penalizes an employee for being homosexual or transgender also violates Title VII”; and “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”

The question presented in Bostock v. Clayton County, whether the characteristic of sex protected by Title VII extends to and includes sexual orientation, gender identification, and transgender status, was presented to the Supreme Court by way of a trio of consolidated cases. The operative facts in each of the three cases were essentially the same.

Gerald Bostock worked for Clayton County, Georgia, as a child welfare advocate. Despite having been an exemplary employee for the county for a decade, Bostock was fired for conduct “unbecoming” of a county employee soon after it was discovered he began participating in a gay recreational softball league.

Donald Zarda was a skydiving instructor for a privately-owned company (Altitude Express) in New York. Days after mentioning to a student he was gay, the company fired him.

Aimee Stephens worked for a funeral home company in Michigan. She presented as a man when she started her employment with the company. Six years into her employment, she explained to her employer that she planned to live and work as a woman (per her treating clinician’s recommendation). The funeral home then terminated her employment because it was “not going to work out.”

The Supreme Court accepted review of these cases because they presented a circuit split and disagreement among the federal courts as to whether Title VII protected homosexual and transgender employees. The Supreme Court seized the opportunity to settle this polarizing debate, bring uniformity to how Title VII is applied, and create equal rights under federal law for LGBTQ employees across America. The ruling reverberates across our country at a time when principles of unity, justice, equality, and civil rights already command our undivided attention.

The Court wrote that the statute imposes liability on employers that “fail or refuse to hire,” “discharge,” “or otherwise . . . discriminate against” someone because of a statutorily protected characteristic like sex. “An individual employee’s sex is “not relevant to the selection, evaluation, or compensation of employees.” In short, an employer should not consider or make decisions based upon an individual employee’s sexual orientation or transgender status.

The Court went further and explained that if the LGBTQ employee’s “sex” is a “but-for” cause for the discrimination suffered by the employee, Title VII has been violated. The Court wrote: “the adoption of the traditional but-for causation standard means a defendant cannot avoid liability just by citing some other factor that contributed to its challenged employment decision.” It makes no difference if other factors besides the employee’s LGBTQ status are considered by the employer in making an employment-based decision (hiring, firing or other disciplinary action). If the employee’s LGBTQ status is considered in connection with the adverse employment action, it is a “but-for” cause and Title VII has been violated.

The Supreme Court’s ruling is not – and was not intended to be – limitless in scope and application. Justice Gorsuch’s opinion included several caveats. For example, the Court’s holding does not extend to sex-segregated bathrooms, locker rooms and dress codes. Likewise, the Court recognized that some employers might have religious objections to hiring LGBTQ employees. That issue was not before the Court and, therefore, the Court did not squarely address it. Similarly, the Court expressed that “[w]hether other policies and practices might or might not qualify as unlawful discrimination or find justifications under other provision of Title VII are questions for future cases.”

The Court’s holding is significant and comes during a pivotal time in our nation’s history. More than one-half of the states do not have statutes protecting employees based on their sexual orientation or gender identity/status. Also, the protections afforded by Title VII do not provide blanket protection to all employees; Title VII by its own language is self-limiting and applies only to employers having “15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year.” Nevertheless, the Court’s decision outlawing anti-LGBTQ employment discrimination will provide new protection to most LGBTQ employees across the nation. For many, this is a freedom they previously did not enjoy.

As a result of this momentous ruling, employers (at least those having 15 or more employees under the “payroll method” of determining employees) should revisit their equal employment, anti-discrimination, and other policies and procedures (i.e. hiring policies), and should work with legal counsel to ensure compliance with the Court’s ruling. Internal grievance procedures, whistleblower policies, and anti-harassment and anti-discrimination training programs likewise must be adjusted. Employers also should consider reviewing sex/gender neutral policies to ensure that none will have a disparate impact on LGBTQ employees. Meanwhile, employees who have been subjected to discrimination or adverse employment action because of their sexual orientation or gender identification, or who have witnessed such discrimination, should not hesitate to contact legal counsel to discuss their rights under the law.

COPYRIGHT © 2020, STARK & STARKNational Law Review, Volume X, Number 168

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About this Author

Benjamin E. Widener, Stark and Stark, Employment Litigation, Labor Attorney
Shareholder

Benjamin E. Widener is a Shareholder in the Employment and Litigation practice groups at Stark & Stark and Chair of the firm’s Employment Law Group, responsible for managing all aspects of employment-related work handled by the firm. Ben concentrates his practice in employment litigation and counseling, as well as general commercial and civil litigation. Ben represents clients in all phases of federal and state court litigation at the trial and appellate levels, in administrative proceedings before the EEOC and state administrative agencies, and has handled matters...

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