This term, the U. S. Supreme Court ruled that gay and transgender workers are protected from employment discrimination under Title VII of the Civil Rights Act of 1964. On a practical level, what does this mean for employers?
Bostock v. Clayton County
The Court’s decision involved multiple cases in which an employer allegedly fired a long-time employee for being either homosexual or transgender. The aggrieved parties all sued under Title VII’s protection against workplace discrimination “because of . . . sex.” The 6-3 majority opinion, held that when “[a]n employer fires an individual for being homosexual or transgender … [s]ex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”
The Court was presented with cases from different federal circuit courts of appeal, styled Bostock v. Clayton County. Two of the cases involved the discharge of plaintiffs—Gerald Bostock and Donald Zarda—based on their sexual orientation. The third case involved a transgender plaintiff, Aimee Stephens, who was fired for informing her employer she planned to live and work as a woman. Under Title VII, an employer cannot intentionally fire an individual employee based in part on sex.
Writing for the majority, Justice Gorsuch held that “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against the individual based on sex.” While the Court unanimously agreed that the drafters of Title VII in 1964 did not intend for the phrase “because of sex” to include the LGBTQ community, the majority found that the expectations of the lawmakers did not matter. Instead, relying on the text of Title VII, the majority found that “homosexuality and transgender status are inextricably bound up with sex.” According to the dissenting opinions, the majority’s decision was an overstep of judicial power. Joined by Justice Thomas, Justice Alito called the decision, quite simply: “legislation.” Similarly, Justice Kavanaugh, writing in a separate dissent, argued that the decision to amend Title VII should have been left to the elected branches of government.
What does this decision mean for employers?
While 26 states, including D.C., Maryland, and, most recently, Virginia, have already addressed LGBTQ rights in the workplace, the Supreme Court’s decision gives “because of sex” a new meaning for employers and employees nationwide. As a result of this decision, employees in all states may seek recourse for employment discrimination based on their sexual orientation or gender identity. With expanded protections, publicity, and public support, the Supreme Court’s decision may very well lead to an increase in federal employment discrimination claims. However, under Title VII, plaintiffs must still go through the administrative complaint process with the U. S. Equal Employment Opportunity Commission (EEOC) before filing a lawsuit in federal court.
Although many states and employers had already prohibited discrimination based upon sexual orientation and gender identity before this landmark decision, it is now even more prudent for all employers to review and, if necessary, update their employee handbooks and training materials. Employers should also be aware of federal and state statutes that use the language “because of sex.” Based on the Supreme Court’s definition of sex-based discrimination, these statutes will likely become the subject of litigation as well. Finally, Title VII does include exceptions for religious organizations, which Justice Gorsuch acknowledges “might supersede Title VII’s commands in appropriate cases.”
Fluet boasts a robust Employment Law practice, representing the interests of both employers and employees. Feel free to address questions regarding this landmark decision or other matters to Partner Kevin Byrnes at (703) 590-1234.
