ALERT: Title VII protects sexual orientation and gender identity
Harassment & DiscriminationTermination & Resignation
The U.S. Supreme Court recently ruled that terminating employees because of their sexual orientation or transgender status is discrimination based on sex and therefore violates Title VII of the Civil Rights Act.
In this 6-to-3 opinion written by Justice Gorsuch, the Court decided three different cases. All three employers admitted they had terminated employees solely because they were “homosexual or transgender.” In Bostock v. Clayton County, a county child welfare advocate was terminated for conduct “unbecoming” because he participated in a gay recreational softball league. In the case of Altitude Express v. Zarda, a skydiving instructor mentioned to a client that he was gay and was terminated days later. And in Harris Funeral Homes v. EEOC, after six years of employment a funeral home employee, who initially presented as male, informed her employer that she planned to “live and work full-time as a woman,” prompting her employer to fire her, saying “this isn’t going to work out.”
Title VII says that it is “unlawful … for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” The decision hinged on the prohibition against discrimination “because of sex” and the meaning of that phrase under federal law.
The Court used a number of hypotheticals to illustrate why discrimination based on sexual orientation or transgender status was necessarily discrimination based on sex. In one such hypothetical it compared identical employees, both of whom are attracted to men, where one of the employees is a man and the other is a woman. If the employer terminates the male employee solely because he is attracted to men, and tolerates this behavior in the female employee, the employer is singling out the male employee on the basis of the employee’s sex. Similarly, if an employer terminates an employee who was assigned male at birth and now identifies as female, but tolerates an employee who was assigned female at birth and who expresses female traits and actions, the “individual employee’s sex plays an unmistakable and impermissible role in the discharge decision.”
The Court’s ruling states that the strict language of the law necessitated this conclusion. “In Title VII, Congress adopted broad language making it illegal for an employer to rely on an employee’s sex when deciding to fire that employee. We do not hesitate to recognize today a necessary consequence of that legislative choice: An employer who fires an individual merely for being gay or transgender defies the law” (Bostock v Clayton County, Georgia, US, June 2020).
Tips: About half of the states in the U.S. already protect LGBTQ+ employees from discrimination, including California, Oregon, and Washington. In these states, today’s decision means that aggrieved employees can now file claims for discrimination under both state and federal laws. In states such as Arizona, Idaho, and Montana that didn’t have statewide protections on the books, the Court’s ruling allows workers to file sex discrimination claims with the U.S. Equal Employment Opportunity Commission (EEOC), alleging employment discrimination on the basis of sexual orientation or gender identity. Also, although the Court’s ruling focused on termination of employment, it applies to all aspects of employment discrimination. As an employer, if you haven’t already addressed protections for LGBTQ employees, you should review your policy against harassment and your harassment training programs to ensure that sexual orientation and gender identity are covered.
Questions? Contact your Vigilant Law Group employment attorney.