Alert 01.05.16
Alert
Alert
06.22.20
Pride Month may look different across the U.S. this year given ongoing social distancing measures, but the Supreme Court has certainly given the LGBTQ+ community and its allies plenty to celebrate, by holding that Title VII of the Civil Rights Act’s prohibition against discrimination on the basis of sex includes job protection for individuals on the basis of being gay or transgender.
The Court’s opinion described the principle underlying its holding as “momentous: An individual’s homosexuality or transgender status is not relevant to employment decisions.” Indeed, the decision now provides that employees throughout the country cannot be fired or otherwise discriminated against on the basis of their sexual orientation or gender identity. Although some states, including California, New York, and most states in the Northeast and Pacific Northwest, already provided such protections under state law, more than half of states afforded employees no such statutory protection. Now, as a result of the Supreme Court’s decision, gay and transgender employees throughout the country are protected from workplace discrimination on these bases.
In a consolidated opinion that addressed three cases reflecting a split of opinion among the U.S. Courts of Appeals on this issue, Bostock v. Clayton Cnty. Bd. of Comm’rs, Altitude Express, Inc. v. Zarda, R.G. & G.R. Harris Funeral Homes v. Equal Employment Opportunity Commission, a surprising 6-3 majority opinion authored by Justice Neil Gorsuch (who, with Chief Justice Roberts, joined the four liberal Justices to comprise the majority) reasoned that the outcome was the result of “the ordinary public meaning of the statute’s language at the time of the law’s adoption.” The Court held that the plain text of Title VII, which broadly prohibits discrimination against individuals on the basis of sex, necessarily extends to sexual orientation and gender expression.1
The facts of the cases were simple and undisputed. At issue in each of the cases, a long-term, otherwise proficient employee had been fired after revealing that they were gay and/or transgender. The employers did not dispute that sexual orientation or gender identity were the reasons for the terminations, but instead argued that employers are entitled to terminate the employees’ employment on that basis as sexual orientation and gender identity are beyond the scope of “sex,” as codified within the statue.
The Court dismissed this distinction and held that making employment decisions about an employee because they are gay or transgender necessarily implicates sex and is therefore prohibited. As stated in the Opinion:
it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.… When an employer fires an employee because she is homosexual or transgender, two causal factors may be in play—both the individual’s sex and something else (the sex to which the individual is attracted or with which the individual identifies). But Title VII doesn’t care. If an employer would not have discharged an employee but for that individual’s sex, the statute’s causation standard is met, and liability may attach.
Under the Trump administration, the Department of Justice submitted amicus briefing supporting the employer’s position that being gay or transgender are not protected characteristics under Title VII. This position is in sharp contrast to the Equal Employment Opportunity Commission’s longstanding position, throughout both Democratic and Republican administrations, that Title VII does provide job protection for such characteristics within the definition of sex.
In line with the EEOC’s position, the Opinion also noted that the definition of “sex” within Title VII has already been expanded to include protection for maternity-related conditions and behaviors that may only impact one gender (i.e., a male supervisor terminating a female subordinate for not welcoming his advances, but not subjecting male subordinates to such treatment), and that, as such, the expansion to cover being gay or transgender naturally follows that same line of logic:
In Title VII, Congress adopted broad language making it illegal for an employer to rely on an employee’s sex when deciding to fire that employee. We do not hesitate to recognize today a necessary consequence of that legislative choice: An employer who fires an individual merely for being gay or transgender defies the law.
Employers should be cognizant that, although the facts of the cases before the Court all related to employment terminations, this decision applies to all aspects of the employment relationship. Notably, this decision comes just days after the Trump administration’s latest attempt to roll back Obama administration protections for LGBTQ+ rights, including regulations under Section 1557 of the Affordable Care Act prohibiting discrimination on the basis of gender identity in certain health programs and activities. The practical effect of the Bostock decision may be to ensure that gay and transgender employees still have access to nondiscriminatory health benefits they access through their employers. And, beyond the realm of employment, the Supreme Court’s decision is likely to lead to increased equality efforts throughout housing, public accommodations, and other areas, as well. Indeed, as stated by Justice Alito in his dissenting opinion, “[w]hat the court has done today—interpreting discrimination because of ‘sex’ to encompass discrimination because of sexual orientation or gender identity—is virtually certain to have far-reaching consequences. Over 100 federal statutes prohibit discrimination because of sex.”
Employers that have not previously had policies prohibiting discrimination or harassment on the basis of sexual orientation or gender identity should update those policies and their sexual harassment training materials to reflect this expanded view of sex discrimination. In addition, employers unfamiliar with enforcing nondiscrimination rules on these bases may wish to consult more detailed guidance issued by human rights commissions in jurisdictions that have included sexual orientation and gender identity in their human rights statutes. For example, as described in Pillsbury’s January 5, 2016, Client Alert on New York City’s guidance on gender identity discrimination, employers should avoid practices that may give rise to gender identity or sexual orientation harassment discrimination claims, including:
Careful thought should also be given to policies on bathroom access and use, and employers would be prudent to consult legal counsel on practical and lawful options if any employees object to rules that, consistent with the clarified reach of Title VII, permit employees to use single-sex restrooms that match the employee’s gender identity.
1. Pillsbury Special Counsel Cynthia Robertson and Associate Robert Boyd, of the firm’s Washington, DC office, teamed with Professor Suzanne Goldberg, the Director of Columbia Law School’s Center for Gender & Sexuality Law & Sexuality and Gender Law Clinic, to prepare and file an amicus brief on behalf of 30 women CEOs and other C-suite executives in support of the employee plaintiffs in these cases.