off therecord

2020

2019

2018

2017

2016

2015

2014

2013

2012

2011

2010

Jul 06, 2020

Civil Rights Win for LGBTQ Employees

By: Allison Mann and Marissa Cerkoney

The LGBTQ community had a great success during this year’s “Pride” month after the Supreme Court ruled that firing an employee for being gay, lesbian, bisexual, or transgender is a violation of Title VII of the Civil Rights Act. Until the 6-to-3 ruling in Bostock v. Clayton County, Georgia on June 15, 2020, it was legal in more than half the states to fire employees based on their gender identity or sexual orientation.

Bostock v. Clayton County, Georgia

This monumental decision consolidated three different cases that were brought before the Supreme Court in October 2019. Bostock v. Clayton County was brought by Gerald Bostock after he was fired from his employment as a child-welfare-services coordinator for Clayton County, Georgia, after his employer discovered he played in a gay softball league. Similarly, in Altitude Express v. Zarda, a skydiving instructor, Donald Zarda, was fired from him job after his employer learned he was gay. The third case, R.G & G.R. Harris Funeral Homes v. EEOC, involved Aimee Stephens, who had been living as a man when she began her employment as a funeral director, was terminated from her position after she told her employer she had been diagnosed with gender dysphoria and would henceforth be living as a woman.

The question brought before the Supreme Court was “whether an employer can fire someone simply for being homosexual or transgender.” The Justices in the majority found that the answer to this question was 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.” According to the Supreme Court, this is an act forbidden by Title VII.

Title VII prohibits employers from discriminating against any individual “because of such individual’s race, color, religion, sex, or national origin.” Although Congress likely did not have LGBTQ people in mind when Title VII was passed in 1964, the law contains a broad prohibition on discriminating “because of sex.” The Supreme Court gave no weight to legislative history of Title VII because the language of the statute unambiguously prohibits the discriminatory practice. Rather, the Supreme Court looked to the ordinary meaning of each word and phrase of Title VII, and interpreted it to mean that an employer violates Title VII when it intentionally fires an individual employee based, at least in part, on sex, which includes sexual orientation and gender identity.

In its decision, the Supreme Court stated that an individual’s homosexuality or transgender status is not relevant to employment decisions. It is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex, which is a direct violation of Title VII.

The Takeaway:

The Supreme Court’s decision in Bostock v. Clayton County, Georgia provides protection to all LGBTQ people from discrimination in the workplace. An individual’s sexual orientation or gender identity may not be considered when making employment decisions or actions. If an employer “intentionally relies in part on an individual employee’s sex when deciding to discharge the employee” or “if changing the employee’s sex would have yielded a different choice by the employer,” then that employer violates Title VII. An example would be, if an employee allows female employees to date men, but does not allow male employees to do the same, then the employer is engaged in sex discrimination. All employees, regardless of their sexual orientation or gender identity, must be treated equally.

Employers are well advised to seek legal counsel when confronted with possible employment discrimination.

Our Interest in Serving You:

Our law firm’s goal is to give understandable information and to foster discussion about real-life issues facing human resource professionals. If we are not achieving that goal or if you would like us to address other employment law issues, please email us at mcerkoney@ndlaw.com or amann@ndlaw.com. We promise to take your comments and ideas to heart.

Disclaimers
(Otherwise known as “the fine print”)

We make a serious effort to be accurate in these writings. These articles are not exhaustive treatises, though, so do not consider them complete or authoritative. Providing this information to you does not create an attorney-client relationship. Do not act upon the contents of this or of any article on our homepage or consider it a replacement for professional advice.

Reprinted with permission from an article submitted for publication in the July, 2020 Southwest Area Human Resource Association newsletter.