Employment Alert: "U.S. Supreme Court Ruling in Favor of LGBTQ+ Workers Has Direct Implications for Workplace Guidelines and Policies"
On Monday, June 15, 2020, the U.S. Supreme Court issued a decision for Bostock v. Clayton County, Georgia. By a vote of 6-3, the Court held that an employer who fires an employee for being homosexual or transgender violates Title VII of the Civil Rights Act of 1964. The Bostock decision resolved a circuit court split as to whether Title VII applied to LGBTQ+ employment discrimination.
Writing for the majority, Justice Neil Gorsuch wrote that “because discrimination on the basis of homosexuality or transgender status requires an employer to intentionally treat individual employees differently because of their sex, an employer who intentionally penalizes an employee for being homosexual or transgender also violates Title VII.
The Bostock v. Clayton County, Georgia decision was merged with two other employment discrimination cases; Altitude Express Inc. v. Zarda and R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission. Each of the three cases dealt with an employer terminating a long-time employee after the employee revealed he or she was homosexual or transgender. Gerald Bostock was terminated for conduct “unbecoming” a county employee after it was discovered that he played in a gay recreational softball league. In Altitude Express Inc. v. Zarda, Donald Zarda was fired shortly after he mentioned he was gay. Finally, in R.G. & G.R. Harris Funeral Homes, Aimee Stephens, a funeral home employee who originally presented herself as a male, was dismissed shortly after she revealed to her employer that she would soon transition and work full-time as a woman.
There were circuit splits between the 11th, 2nd, and 6th Circuit Courts. The 11th Circuit, which heard Mr. Bostock’s appeal, ruled that Title VII did not prohibit employers from firing employees for being homosexual or transgender, so the suit could be dismissed as a matter of law. However, the 2nd and 6th Circuits disagreed. The 2nd Circuit reasoned that Title VII prohibits employers from firing employees because they are homosexual, and the 6th Circuit held that Title VII protections extend to transgender employees as well.
The Supreme Court upheld the 2nd and 6th Circuit decisions while reversing the 11th Circuit’s decision. In writing about the meaning of “sex” within Title VII, the Court explained the difference between what the text of Title VII demands and what the drafters of Title VII might have envisioned. Justice Gorsuch wrote that while “[t]hose who adopted the Civil Rights Act might not have anticipated their work would lead to this particular result…the limits of the drafters’ imagination supply no reason to ignore the law’s demands. When the express terms of a statute give us one answer and extratextual considerations suggest another, it’s no contest. Only the written word is the law, and all persons are entitled to its benefit.”
What’s more, by linking the discrimination of an employee’s being homosexual or transgender to the employee’s sex, the Court wrote that the employee’s “sex need not be the sole or primary cause of the employer’s adverse action.” Instead, the court uses a but-for test in evaluating actions by an employer concerning a Title VII violation. For example, the test asks whether the employer would have not have terminated the employee but-for the employee being homosexual or transgender. If the answer is yes, then the employer has violated Title VII, even if the employer had other reasons for terminating the employee. An employer cannot escape liability by simply pointing to some other non-protected trait and insisting it was more important in the outcome.
Finally, the Court wrote that Title VII applies to both individuals and groups. An employer cannot escape liability by demonstrating that it treats males and females equally as groups. Firing both male and female employees for being homosexual doubles the employer’s discrimination, and it is not a Title VII defense.
What’s New For Employers?
In order to reflect the Bostock ruling, employers should implement or update their workplace guidelines and trainings concerning their anti-discrimination policies, including the following:
- Revise and review anti-discrimination policies to ensure that employees’ sexual orientations are included in the company’s legally protected categories.
- Update the company’s discrimination and harassment programs to ensure that LGBTQ+ related discrimination and harassment is addressed.
- Revise the company’s procedures for evaluating personnel decisions, making sure that decision makers are mindful of facts that might lead to an inference of discrimination with respect to LGBTQ+ employees.
Further, employers should track the Equal Employment Opportunity Commission guidance that will follow the Bostock ruling since it is unclear how the ruling will affect interpretations of other federal laws barring sex discrimination, including Title IX, the Equal Pay Act, and the Affordable Care Act, among others.