EMPLOYMENT: LGBTQ Employees Are Protected by Federal Antidiscrimination Statute, Supreme Court Holds
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Employment Discrimination 628May

EMPLOYMENT: LGBTQ Employees Are Protected by Federal Antidiscrimination Statute, Supreme Court Holds

An employer that discharges an individual for being LGBTQ violates Title VII of the Civil Rights Act of 1964, the Supreme Court held 6-3 in one of the last decisions of its October 2019 term. Bostock v. Clayton County, Georgia, 140 S. Ct. 1731, 207 L. Ed. 2d 218 (2020).

Title VII contains the well-known prohibition of discrimination in employment against an individual “because of’ the individual’s “race, color, religion, sex, or national origin.” 42 U.S.C.

§ 2000e-2(a)(l). Writing for the majority, Justice Gorsuch explained that an employer who fires

an individual for being LGBTQ fires that person for traits or actions it would not have questioned in members of a different sex. Thus, sex plays a “necessary and undisguisable role” in such d cisions – precisely what Title VII forbids.

Three cases were consolidated for this appeal. Each one started with an employer discharging a long-term employee soon after the employee revealed that he was homosexual or gender-transitioning – and allegedly for no other reason. In Bostock v. Clayton County Board of Commissioners, 819 F. App’x 891 (11th Cir. 2020), the employee had been a county child welfare advocate for 10 years with .an excellent performance .record. After he joined a .gay recreational softball league, however, influential community members allegedly began making negative comments about his sexual orientation and the “optics” of his playing in a gay athletic league. Shortly thereafter, he was discharged for conduct unbecoming a county employee.

In the second case, Zarda v. Altitude Express, Inc., 883 F.3d 100 (2d Cir. 218) (en bane), the employee in question had worked as a skydiving instructor for a private employer. After several successful seasons with the company, he mentioned to a skydiving student that he was gay and just days later his employment was terminated.

The third suit, EEOC v. R.G. & G.R. Harris Funeral Homes, Inc., 884 F.3d 560 (6th Cir.

2018), was brought by the Equal Employment Opportunity Commission (EEOC) against a funeral business that had discharged a male employee when, after six years of satisfactory performance as a funeral director, he announced that he was transitioning to live and work as a female. Although the employer hc1;d a professional dress code for its public-facing employees of each sex, it required the employee in this case to continue to follow the dress code for men.

After the employee wrote a letter stating that upon returning from vacation he would be presenting as a woman, his employment was terminated.

Although the three cases began the same way, they ended differently. In Bostock, the Eleventh Circuit held that Title VII does not prohibit employers from discharging employees for

being homosexual, and so the s·uit could be dismissed as a matter of law. Meanwhile, the Second

Circuit concluded in Zarda that sexual orientation discrimination in employment is in fact prohibited by Title VII and, thus, the suit could proceed. Finally, in Harris Funeral Homes, the Sixth Circuit reached a conclusion similar to the Second Circuit’s, holding that Title VII prohibits employers from discharging employees because of their transgender or transitioning status. The Supreme Court granted review in these cases to resolve the disagreement among the circuits over the scope of Title VII’s protections for homosexual and transgender persons.

As the Court further explained, it is impossible to discriminate against a person for being LGBTQ without discriminating against that individual on the basis of sex. The Court offered as an example an employer with two employees, both of whom are attracted to men. To the employer’s mind, the two individuals are material identical in all respects, except that one is a man and the other is a woman. If the employer were to fire the male employee for no reason other than his attraction to men, the employer would be discriminating against him for traits or actions it tolerated in his female colleague. Put differently, the employer would have intentionally singled out the employee to fire based in part on the employee’s sex, and the affected employee’s sex would be a cause of his discharge. As another example, the Court hypothesized an employer discharging an employee who was identified as male at birth but who currently ident1fies as female. If the employer were to retain an otherwise identical employee who was identified as female at birth, the employer would be intentionally penalizing the employee identified as male at birth for traits or actions that it tolerated in the employee identified as female at birth. Again, the individual employee’s sex would play “an unmistakable and impermissible role in the discharge decision.” Bostock, 140 S. Ct. at 1741-42.

In summary, the Court stated that these cases involved no more than the straightforward application of legal terms with plain and settled meanings. For an employer to discriminate against employees for being homosexual or transgender, of necessity, the employer must intentionally discriminate against individual men and women in part because of sex. This has always been prohibited by Title VII’s plain terms.

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