Here it is, perhaps the one US Supreme Court decision we’ve all been awaiting. Officially, the name of the case is Bostock v Clayton County, Georgia. Most of us, however, would refer to it as the case deciding the rights of LGBTQ workers. The title of my post is the giveaway. The US Supreme Court today handed down its 6-3 ruling, that Title VII of the Civil Rights Act of 1964’s prohibitions against sex discrimination include discrimination based on sexual orientation and gender identity. How did the high court arrive at that decision and what does it mean for US employers, going forward? That’s the subject of this week’s post. so read on… As with many US Supreme Court cases, this one isn’t really just one case, but rather it’s a consolidation of three. In the original Bostock v Clayton County, Georgia, Clayton County fired Gerald Bostock, for conduct “unbecoming” a county employee after he began participating in a gay softball league. In Altitude Express, Inc., et al. v. Zarda et al, Altitude Express fired Donald Zarda within a few days of him identifying himself as gay. In R. G. & G. R. Harris Funeral Homes, Inc. v. Equal Employment Opportunity Commission et al., R&G and G&R Harris Funeral Homes fired Aimee Stephens, who, when hired presented as male, but later told her employer of her plans to “live and work full-time as a woman”. All three employees sued their employers, alleging sex discrimination under Title VII of the Civil Rights Act of 1964.
The Eleventh Circuit dismissed Mr. Bostock’s claim, ruling that Title VII does not prohibit discrimination against employees based on their sexual orientation. The Second and Sixth Circuit Courts of Appeals, however, allowed Mr. Zarda and Ms. Stephens’ claims to go forward. The losing party on each side of those rulings appealed and the US Supreme Court agreed to hear arguments on each case, and, as I mentioned consolidated the 3 claims. In a nutshell, here are the employers’ arguments SCOTUS’s response to each:
- Since the employees would likely respond in conversation that they were fired for being gay or transgender they were not discriminated against based on sex. SCOTUS’ response: Conversational conventions do not control Title VII, which merely asks if sex is a but-for cause. Furthermore, intentional discrimination based on homosexuality or gender identity issues is intentional discrimination based on sex, because discriminating against a homosexual or transgender employee “necessarily and intentionally applies sex-based rules”, even when an employer refuses to hire a homosexual or transgender employee without knowing their actual sex. An employer who intentionally sets a rule that turns on sex violates Title VII regardless of what it does or doesn’t know about the individual applicants.
- Homosexuality and gender identity are distinct concepts from sex. If Congress wanted to address them in Title VII it would have done so specifically. SCOTUS’s response: When Congress chooses not to include exceptions to a broad rule the US Supreme Court applies the broad rule.
- Title VII doesn’t protect against discrimination based on sexual orientation because few in 1964 would have expected it to be applied in such a way. SCOTUS’s response: The employers’ reasoning seems to be that when a new application is unexpected (albeit important and clearly commanded by now existing law) SCOTUS should note the question, refer it back to Congress, and opt not to enforce the plain meaning of the law in the meantime. SCOTUS has long rejected such reasoning, which merely creates more problems and adds another law that would need to be overturned.
That’s not all the Court said, however (clearly not, as the main opinion is 33 pages long, and the 2 dissenting opinions comprise the remaining 139 pages). Here is the distilled version of the Court’s reasoning:
- The term “[discrimination] because of sex” incorporates a “but for” causation standard, meaning that even if there is another factor other than sex that contributed to the decision, if there is still an intentional, different treatment based on sex, then causation is established. In other words, an employer violates Title VII when it intentionally treats someone differently based in part on sex.
- Based on 3 precedents, that I will not discuss here for fear of making this post too long, it doesn’t matter what or how an employer labels the discriminatory practice or even what the specific motivation was. If the practice is intentional and treats employees differently based at least in part on sex, it’s still discrimination “because of sex” and still violates Title VII. One precedent involved requiring women to contribute more to their retirement funds, ostensibly based on women’s higher life expectancy. This practice still treated women differently “because of sex”. (OK, I did get into one of the precedents, but I think it helped explain this point, so work with me on this, OK?)
The rest of the majority opinion, which you can access here, seems to expand on the above, which, as I’ve said, is the distilled version.
OK, you probably don’t need me to tell you what this means for you as an employer. If you have 15 or more employees you are subject to Title VII. If you treat someone differently based on their sexual orientation or gender identity if you prevent them from enjoying the same terms, conditions, privileges benefits of employment as other similarly situated employees who are not in either of those classes you risk liability for violating Title VII. Make sure that your HR practitioners and managers are trained on this new development. Also, remember state laws may impose additional layers of protection to employees, so make sure that you comply with all such state laws in any state where your employees work!
Watch the latest video clip in my series, “Ask the Employer’s Lawyer: My Employee Has Exhausted All Her FMLA Leave Time. What do I do? Watch my television interview on Stop My Crisis with Vivian Gaspar.
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