June 17, 2020
Amy L. Miles
Attorney, Stoll Keenon Ogden PLLC
In a decision announced on Monday, June 15, the U.S. Supreme Court held that an employer who fires an individual merely for being gay or transgender violates the federal prohibition on “sex” discrimination contained in Title VII of the Civil Rights Act of 1964 (“Title VII”). Bostock v. Clayton County, 590 U.S. ____ (2020). A copy of the slip opinion can be found here.
The opinion resolved three cases before the Court, all of which were argued last October.
In the first case, Bostock v. Clayton County, a Georgia county fired a long-time social worker, Gerald Bostock, for conduct “unbecoming” an employee shortly after Bostock began participating in a gay recreational softball league.
In the second case, Zarda v. Altitude Express, et al., Donald Zarda was fired from his job as a skydiving instructor at Altitude Express in New York several days after he mentioned being gay to a customer.
In the third case, R.G. & G.R. Harris Funeral Homes, Inc. v. EEOC, Aimee Stephens was fired from her job at a Michigan funeral home after she announced her intention to her employer to begin living as a woman. When she was first hired, Ms. Stephens had presented as male.
All three employees brought suit under Title VII alleging unlawful discrimination on the basis of sex. In Mr. Bostock’s case, the Eleventh Circuit Court of Appeals held that the law’s prohibition on sex discrimination did not prohibit employers from firing employees for being gay. Meanwhile, in Mr. Zarda’s case, the Second Circuit Court of Appeals reached the opposite conclusion, holding that sexual orientation discrimination does violate Title VII. Finally, in Ms. Stephens’ case, the Sixth Circuit Court of Appeals held that Title VII bars employers from firing employees because of their transgender status.
The Court’s Decision
Justice Neil Gorsuch, writing for the majority, described the question as straightforward: “Today, we must decide whether an employer can fire someone simply for being homosexual or transgender.” The answer to that question, Justice Gorsuch explained, “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 Supreme Court went on to articulate “a straightforward rule” as follows:
An employer violates Title VII when it intentionally fires an individual employee based in part on sex. It doesn’t matter if other factors besides the plaintiff ’s sex contributed to the decision. And it doesn’t matter if the employer treated women as a group the same when compared to men as a group. If the employer intentionally relies in part on an individual employee’s sex when deciding to discharge the employee—put differently, if changing the employee’s sex would have yielded a different choice by the employer—a statutory violation has occurred.
Gorsuch framed his analysis as a simple application of Title VII’s plain language. While he acknowledged that Title VII’s application to the cases before the Court likely reached “beyond the principal evil” legislators may have intended or expected to address upon its initial passage in 1964, “the fact that [a statute] has been applied in situations not expressly anticipated by Congress does not demonstrate ambiguity; instead, it simply demonstrates [the] breadth of a legislative command.”
Justice Gorsuch was careful to note that the decision was limited to the narrow question of whether an employer who fires someone for being homosexual or transgender has discharged or discriminated against that individual “because of such individual’s sex” in violation of Title VII. “[W]e do not purport to address bathrooms, locker rooms, or anything else of the kind.” Gorsuch also emphasized that the Court’s decision did not affect Title VII’s existing exemption for religious organizations, and expressly left open how its new interpretation might apply to other employers with religious convictions, going so far as to suggest that the Religious Freedom Restoration Act of 1993 could supersede Title VII’s commands in appropriate cases. Justice Gorsuch ultimately concluded, however, that how doctrines protecting religious liberties interact with Title VII are questions for future cases.
Writing in two separate dissents, Justices Samuel Alito, Clarence Thomas and Brett Kavanaugh argued that Congress never intended for “sex” discrimination to be so widely construed when Title VII was initially passed, and that Congress had for many years considered, but rejected, amendments to explicitly include sexual orientation and gender identity as protected classes in Title VII. The dissenters would have continued to commit these questions to the legislative and executive political branches, not the judiciary.
Takeaway for Employers
Before the Bostock decision, employee protections against discrimination based on sexual orientation and gender identity were largely a patchwork of state, city, and local laws and ordinances that varied widely from place to place. The Supreme Court’s decision now means that there is national standard for these protections under Title VII, which applies to employers with fifteen (15) or more employees. Furthermore, state and local laws which also prohibit discrimination on the basis of “sex” will similarly be construed to include sexual orientation and gender identity. This means that the employee threshold may be lower than fifteen employees depending upon the state or local law at issue.
Moving forward, employers should review their internal handbook policies and Equal Employment Opportunity Commission statements to ensure that protections for sexual orientation and gender identity are specifically included in their policy language. Federal, state, and local contractors and grant recipients should also review and revise their affirmative action plans to ensure that they promote LGBT hiring and promotion.
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