June 15, 2020

LGBTQ Employees Protected Under Title VII – US Supreme Court Issues Landmark Decision

In a groundbreaking decision with far-reaching consequences, the Supreme Court on June 15, 2020, held that federal workplace laws prohibit employers from firing employees based on their sexual orientation and transgender status. The highly anticipated decision resolves a trio of cases in which employees were terminated based on their sexual orientation and transgender status. In a 6-3 majority decision authored by Justice Neil Gorsuch, the Court has definitively held that Title VII’s prohibition on sex discrimination includes sexual orientation and transgender status making discrimination on those bases a violation of federal law.

Employers will need to modify their workplace policies and practices in accordance with the decision and understand that this expansion of Title VII prohibitions will likely be a source of expanded litigation going forward.

The decision was issued in the combined cases Bostock v. Clayton County, Altitude Express v. Zarda, and R.G. & G.R. Harris Funeral Homes v. Equal Employment Opportunity Commission.

In Bostock, child welfare advocate Gerald Bostock was fired after he began participating in a gay recreational softball league. The local community became aware and took issue with his participation. In Altitude Express, skydiving instructor Donald Zarda was fired after his employer learned that he was gay. In R.G. & G.R. Harris Funeral Homes, Aimee Stephens was fired after she told her employer that she planned to live and work full time as a woman.

The Supreme Court reasoned that the “ordinary public meaning” of Title VII results in “a straightforward rule” that “an employer violates Title VII when it intentionally fires an individual based in part on sex.” As a result, the Supreme Court held, “when an employer fires an employee for being homosexual or transgender, it necessarily and intentionally discriminates against that individual in part because of sex. And that is all Title VII has ever demanded to establish liability.”

Justice Gorsuch’s opinion provided several examples applying this rationale to show that when employers discriminate against homosexuality or transgender status, they are clearly discriminating based on sex in violation of Title VII.

If a male employee and a female employee are both attracted to men but only the male employee is fired because of that attraction, the employer intentionally singles out the male employee in part because of the employee’s sex.

Similarly, if a transgender employee and a female employee both identify as female and only the transgender employee is fired, the employer intentionally penalizes a person identified as male at birth for traits or actions that it tolerates in an employee identified as female at birth.

Gorsuch also added that it isn’t a defense for the employer to say it fires all male and female employees who are homosexual or transgender, rather such a discriminatory policy increases the employer’s Title VII violations.

“So just as an employer who fires both Hannah and Bob for failing to fulfill traditional sex stereotypes doubles rather than eliminates Title VII liability, an employer who fires both Hannah and Bob for being gay or transgender does the same,” Gorsuch wrote. “An employer who fires both lesbians and gay men equally doesn’t diminish but doubles its liability.”

Critically and ensuring future courts would be hard pressed to reverse the decision, the majority held that Title VII’s protections for sexual orientation and transgender status are found in the clear text of the statute. The Court went so far as to say “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.” Therefore, the Court took the position that even where an employer intends to discriminate on sexual orientation status, they are still discriminating based on sex.

Notably, the Court did go to lengths to limit its rulings merely to terminations. However, this decision will certainly be used to delegitimize other adverse employment decisions and that expanded application will lead to future divergent decisions from District and Circuit Courts.

In dissent, Justice Alito, joined by Justice Thomas, and Justice Kavanaugh argued that the Majority had usurped the role of Congress and was legislating from the bench when setting the scope of Title VII, something inherently reserved for the legislature.

Employers should review their anti-discrimination, harassment and retaliation policies to ensure they comply with the Court’s decision. Employers should also begin to consider how this decision will affect other areas of their operation and compliance. Hyland Levin Shapiro’s employment practice group continuously advises our clients on changes in the law and its enforcement. We work regularly with employers to update their policies and procedures, to address potential liabilities to prevent litigation, and fully defend our clients against all manner of employment claims.

If you have questions about this new case and related issues, please contact Megan K. Balne at 856.355.2936 or balne@hylandlevin.com or Michael G. Greenfield at 856.355.2931 or greenfield@hylandlevin.com.

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