The US Supreme Court holds that discrimination against LGBT people in the workplace is unlawful.
The dismissal of gay, lesbian or transsexual employees because of their sexual orientation or gender identity is illegal according to Title VII!
On June 15, 2020, the United States Supreme Court published its ruling in Bostock against Clayton County, Georgia, a landmark case for LGBTQ workers. The court ruled that discrimination in the workplace was based on discrimination against a worker sexual orientation or gender identity is illegal under Title VII of the Civil Rights Act of 1964. This decision is a great victory that will extend protection against discrimination in the workplace to millions of people LGBT Workers in the United States.
Title VII: The Basics of Anti-Discrimination Laws
Title VII of the Civil Rights Act of 1964 prohibits discrimination in the workplace based on a worker's membership of a “protected class”. Protected classes under Title VII include gender, race, national origin, skin color and religion. The Americans with Disabilities Act (ADA), the Age Discrimination Based on Employment Act (ADEA), and the Labor and Re-Employment Rights for Uniformed Services Act (USERRA) also protect against workplace discrimination based on disability, age, and military Affiliation.
However, until June 15, 2020, two categories that were not included in this list of protected classes under Title VII were sexual orientation and gender identity. This meant that LGBT workers were not protected from discrimination in the workplace. They could only be fired because of their sexual orientation or gender identity.
The Circuit Split
State courts and federal courts have heard countless arguments as to why the protection of Title VII should be extended to include sexual orientation and gender identity. Some courts were persuaded, others not. Because the jurisdiction of the lower federal courts is limited to certain areas of the country, the question of whether workers were protected from discrimination in the workplace because of their sexual orientation led to a different answer in the United States.
In some areas, sexual orientation was already considered a protected class. However, in most states (including Ohio), sexual orientation was NOT considered a protected class. Employers could discriminate against workers based on their sexual orientation and would have no legal implications.
For the majority of workers in the United States, the only form of legal protection from discrimination based on sexual orientation or gender identity was protection from gender stereotypes and gender deviation – both subsets of Claims based on sex discrimination under Title VII. However, the law surrounding these claims is murky, and discrimination based on a person's sexual orientation or gender identity often did not fit exactly into any of these categories. From a practical point of view, most LGBTQ workers had little or no protection from discrimination in the workplace. Because the nation was divided over how to deal with workplace discrimination in these situations, the Boston Supreme Court heard an oral argument against Clayton County Georgia to settle the debate.
Bostock versus Clayton County Georgia: The background information
Bostock v Clayton County Georgia consolidates three different cases from across the country, all of which needed an answer to the same question: Can you get fired just because of your sexual orientation or gender identity? While in Bostock, Gerald Bostock worked as a child welfare coordinator in Georgia. Mr. Bostock is a gay man and when he disclosed his sexual orientation to his employer, his sexual orientation was openly criticized. He was falsely accused of mismanaging his department's funds, and his employment relationship was eventually terminated for "behavior that is not an employee's right".
The other two consolidated cases were Altitude Express Inc. v Zarda and R.G. & GR. Harris Funeral Homes Inc. v Equal Employment Opportunity Commission. In Zarda, Donald Zarda worked as a parachutist. Skydivers are tied to the customer while skydiving, so the instructors often joked with their customers about the proximity to allay their customers' fears. At one point, Mr Zarda was working with a client and joking that he was gay to alleviate the client's discomfort at being tied to a male instructor. The client reported on Mr. Zarda's comment on his sexual orientation and soon afterwards his employment relationship was terminated.
In R.G. & GR. Harris Funeral Homes Inc., a transgender woman, Aimee Stephens, worked as a funeral director at a funeral home. When she started working at the funeral home, Aimee presented herself as a male and was called Anthony Stephens. She was fired several years later after disclosing her transgender status and intention to present herself to her employer as female. She was told that her desire and intention to portray herself as a woman "would not work".
In all three cases, employers admitted that they fired workers for being gay or transgender. In all three cases, however, employers argued that this was permissible as Title VII does not protect against this type of discrimination.
The legal question and "Because of gender": what does that mean?
The main legal issue of whether to include sexual orientation and gender identity as protected classes under Title VII has to do with the language of the law. Sexual orientation and gender identity were not explicitly listed in the categories of protected classes at the time Title VII came into force in 1964. Hence, opponents of extending Title VII protection to LGBTQ people argue that there is no reason to include it now. Opponents argue that it is for Congress, not the courts, to do so if the meaning and language of Title VII is to be changed.
Proponents of extending protection from Title VII to sexual orientation and gender identity argue that discrimination based on a person's sex necessarily includes discrimination based on that person's sexual orientation or gender identity. The language “because of gender” in the text of Title VII includes sexual orientation and gender identity, as the gender of a person ultimately determines whether discrimination on the basis of sexual orientation or gender identity can occur:
Example: Sam is with a woman. Sam may or may not have a same-sex partner; This can only be determined by determining if Sam is male or female.
Example: Jordan identifies as female. Jordan may or may not be transgender; This can only be determined by determining the gender Jordan was assigned at birth.
If an employer fires a male worker for dating men but does not dismiss female workers for dating men, the employer treats his workers differently depending on their sex, in violation of Title VII. The same applies to transgender employees: if an employer fires a transgender employee for presenting himself as male, but does not dismiss employees who were assigned the male gender at birth, those employees are also treated differently depending on their gender.
The decision: a big win for LGBT workers
On June 15, 2020, the Supreme Court joined the proponents in a 6–3 decision and stated that “an employer who fires an employee for his own being Gay or transgender dismisses that person for qualities or actions that they would not have questioned in members of the opposite sex. “The Court found that a person's gender“ played an unmistakable and unacceptable role ”in discrimination based on that person's sexual orientation or gender identity. Hence, it needs to be included as a form of sex discrimination that Title VII prohibits. The court's ruling will finally extend protection from workplace discrimination to LGBTQ workers in the United States.
At Mansell Law, we consider the position of the Bostock Court to be long overdue and we welcome the rights of the LGBT community in this country! Everyone should feel free to live their most authentic life and we will fight for your right to do so. If you think you have been discriminated against based on your sexual orientation or gender identityContact us to arrange a free consultation.
Mansell Law – Employment Lawyers
Everything you need to know now about the landmark LGBTQ case before the Supreme Court