U.S. Supreme Court: Employment Discrimination
Based on Sexual Orientation or Gender Identity
Violates Title VII of the Civil Rights Act of 1964
June 25, 2020
The U.S. Supreme Court issued a landmark ruling on June 15, 2020 protecting gay and transgender employees from employment discrimination. In Bostock v. Clayton County, Georgia, the Supreme Court held that Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating against an employee because of the employee’s homosexuality or transgender status.
A brief overview of the Supreme Court’s Bostock decision
The Bostock case was actually a consolidation of three separate cases. Two cases dealt with employees (Gerald Bostock and Donald Zarda) who were fired because they were gay, and in the third case, an employee named Aimee Stephens, who presented as male when she was hired, was fired after she announced her intention to “live and work full-time as a woman.”
All three individuals sued their employers for violating Title VII of the Civil Rights Act of 1964, which says it is “unlawful… for an employer to… discriminate against any individual… because of such individual’s… sex…” The cases eventually made their way to the U.S. Supreme Court.
The Supreme Court was tasked with determining whether an employer’s decision to fire an employee because the employee was gay or transgender constitutes discrimination “because of” the employee’s “sex” under Title VII of the Civil Rights Act. The Court said yes, it does.
The Supreme Court announced the following rule: an employer violates Title VII when it intentionally fires or discriminates against an employee based in part on sex. And “it is impossible for an employer to fire an employee for being homosexual or transgender without discriminating against that individual based on sex.” Thus, an employer’s decision to fire an employee merely because the employee is gay or transgender is a decision based at least in part on the employee’s sex, which violates Title VII.
There are two important principles underlying the Supreme Court’s decision. The first concerns the causes—i.e., the reasons—the employer fires or discriminates against the employee: an employer’s decision to fire an employee violates Title VII even when the employee’s homosexuality or transgender status was only one of multiple reasons the employer fired the individual. Title VII does not require homosexuality or transgender status to be the only reason the employer discriminated against the employee, nor does it have to be the primary reason for the employment discrimination; rather, if an employer discriminates against an employee even partially because the employee is gay or transgender, the employer violates Title VII.
The second important principle is that discrimination based on homosexuality or transgender status is necessarily discrimination based on sex. As far as Title VII is concerned, “sex” and homosexuality or transgender status are inextricably bound up with each other. The Supreme Court explained that it is impossible for an employer to discriminate against a person for being gay or transgender without discriminating because of “sex,” as that term was understood when the Civil Rights Act was passed in 1964. The Court explained that the term “sex,” as used in Title VII in 1964, meant “male or female [as] determined by reproductive biology.” Therefore, “[a]n 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.” For example, if a male employee is attracted to other males, and a female employee is attracted to males, but only the male employee is fired because of his same-sex attraction, that decision is necessarily based on the male employee’s sex. Attraction to males is tolerated in female employees, but not in males, so the employee’s sex (his status as a male) is one of the reasons he was fired.
What does this mean for employers?
There are several important implications of the Supreme Court’s Bostock decision for Ohio employers:
First, employers must refrain from discriminating against employees—i.e., treating them worse or differently from other employees—because of their sexual orientation or gender identity.
Second, employers should review their non-discrimination policies and procedures and handbook provisions to ensure they fully comply with the Court’s decision.
Third, all employees, particularly managers and those with oversight responsibility, should receive regular training on what constitutes discrimination and harassment in the workplace, including discrimination based on sexual orientation or gender identity.
Fourth, it is important that employers carefully document the reasons for all adverse employment actions—i.e., disciplinary actions, terminations—as well as positive actions, such as promotions, taken with respect to all employees. This contemporaneous documentation confirms the reasons other than sex that were the basis of the employer’s action, likely protecting an employer from future liability in the event of an employment discrimination claim.
Implications of the Bostock decision on Ohio law and religious liberty:
One important implication of the Bostock decision is its potential impact on Ohio’s anti-discrimination statutes. In addition to the federal anti-discrimination provisions contained in Title VII of the Civil Rights Act of 1964 considered by the Supreme Court in Bostock, Ohio has its own anti-discrimination statute, which like Title VII, prohibits discrimination “because of sex.” Moreover, Ohio’s courts regularly follow federal courts’ lead when determining if an employer violated Ohio’s statutes. It becomes highly likely, then, that an employer discriminating against an employee because of the employee’s sexual orientation or gender identity potentially violates not only federal Title VII, but also the state law found in Ohio’s anti-discrimination statutes.
Despite the Supreme Court’s Bostock decision, there are unresolved legal questions regarding employers who, because of sincerely held religious beliefs, fire or discriminate against employees based on their sexual orientation or gender identity. While some religious organizations are exempt from compliance with Title VII, the law on such exemptions is always evolving. The Bostock decision did not weigh in on discriminatory employment practices arising out of such religious beliefs.
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