On Monday June 15, 2020, the United States Supreme Court held that gay and transgender employees are protected from discrimination under Title VII of the Civil Rights Act in a momentous decision in the consolidated cases of Bostock v. Clayton County, Georgia, Altitude Express Inc. v. Zarda, and R.G. & G.R. Harris Funeral Homes Inc. v. EEOC. In so holding, the Supreme Court boldly stated that:
- An individual’s homosexuality or transgender status is not relevant to employment decisions.That’s because it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.
Title VII of the Civil Rights Act prohibits employers from “fail[ing] or refus[ing] to hire or to discharge any individual, or otherwise to discriminate against any individual . . . because of such individual’s . . . sex.” The question in Bostock was whether the word “sex” encompassed gay and transgender individuals, such that firing an employee for being gay or transgender violated Title VII. The Supreme Court answered that question in the affirmative, stating that“homosexuality and transgender status are inextricably bound up with sex.”
Integral to the Supreme Court’s reasoning was that liability under Title VII is triggered when sex (or some other protected characteristic) is a “but-for” reason for termination. The Supreme Court clarified that liability under the “but-for” test is not dependent on “sex” being the sole factor or even the primary factor for termination; It is enough that the employer’s decision was based in part by “sex.” In light of this principle, the Supreme Court determined that an employer violates Title VII’s prohibition on sex discrimination “if changing the employee’s sex would have yielded a different choice by the employer.”
Applying this to the case at hand, the Supreme Court reasoned: “An 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. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”
To highlight its reasoning, the Court gave two examples. First, if an employer has two employees, one male and one female, who are both attracted to men, but decides to fire the male employee because of his attraction to men, the employer violates Title VII. Indeed, in so doing the employer decided to fire the male employee for traits it tolerated in the female employee; thus, but-for the male employee’s sex, he would not have been fired.
Second, as it concerns transgender persons, the Court explained:
- Take an employer who fires a transgender person who was identified as a male at birth but who now identifies as a female. If the employer retains an otherwise identical employee who was identified as female at birth, the employer intentionally penalizes a person identified as male at birth for traits or actions that it tolerates in an employee identified as female at birth.
In both examples, the Court clarified, “sex plays an unmistakable and impermissible role in the discharge decision.”
In its decision, the Court rejected the employer’s argument that liability under Title VII does not attach if an employer fires both male and female employees who are homosexual or transgender at the same rate. The Court reasoned that Title VII is concerned with discrimination against individuals, not classes of persons. Thus, “Title VII’s plain terms and our precedents don’t care if an employer treats men and women comparably as groups; an employer who fires both lesbians and gay men equally doesn’t diminish but doubles its liability.” (emphasis added).
The Supreme Court’s decision resolves a split among the circuit courts regarding LGBT rights under Title VII. It is now clear that an adverse employment action against an employee for being gay or transgender is unlawful under Title VII.
Given this recent development, employers subject to Title VII are encouraged to review their employment handbooks and update nondiscrimination and anti-harassment policies that do not protect LGBT employees, and institute trainings geared toward nondiscrimination of LGBTQ persons. Furthermore, all current employees should be advised of this recent development in the law. Title VII applies to most employers with at least 15 employees.
The employment lawyers at Mesch Clark Rothschild have extensive experience working with employers to develop effective and appropriate training and management practices. If you have questions regarding your rights and obligations under Title VII, contact the experienced employment attorneys at Mesch Clark Rothschild.
