|On June 15, 2020, the Supreme Court, in a 6-3 vote, ruled that Title VII protects employees from discrimination based on their gender identity and sexual orientation.|
Title VII of the Civil Rights Act of 1964 (“Title VII”) prohibits employers from discriminating against employees “because of… sex.” The Supreme Court addressed the question of whether Title VII’s protections extend to homosexual and transgender employees.
In making its decision, the Court considered three cases. The first two concerned lawsuits from gay men who alleged that their employers fired them because of their sexual orientation. Gerald Bostock, a child welfare advocate in Clayton County, Georgia, filed the lawsuit in the first case. Mr. Bostock worked for Clayton County for nearly a decade. By all accounts, Mr. Bostock excelled at his job; under his leadership, Clayton County had won national awards for its work. However, the county fired Mr. Bostock shortly after he joined a gay softball league “for conduct ‘unbecoming’ a county employee.” In the second case, Altitude Express, a skydiving company in New York, fired Donald Zarda, a skydiving instructor, merely days after a female customer filed a complaint. During a tandem dive, the female customer expressed concerns about being strapped to Mr. Zarda. To quell her concerns, Mr. Zarda told her that he was “100 percent gay.”
The final case, filed by Aimee Stephens, a funeral director and embalmer, concerned gender identity. When Ms. Stephens began working at R.G. & G.R. Harris Funeral Homes in Michigan, she presented as a male. After two years with the company, she revealed that she planned to “live and work full-time as a woman” after she returned from an upcoming vacation. The funeral home fired her before she left for her vacation, telling her “this is not going to work out.”
In its analysis, the Court stated that an employer violates Title VII if it “intentionally fires an individual based,” in part, on the individual being male or female. “It doesn’t matter if other factors besides the plaintiff’s sex contributed to the decision….. If the employer intentionally relies in part on an individual employee’s sex when deciding to discharge the employee – put differently, if changing the employee’s sex would have yielded a different choice by the employer – a statutory violation has occurred.”
The Court then provided examples. The Court considered “an employer with two employees, both of whom are attracted to men. The two individuals are…materially identical in all respects, except that one is a man and the other a woman. If the employer fires the male employee for no reason other than the fact he is attracted to men, the employer discriminates against him for traits or actions it tolerates in his female colleague.” Similarly, the Court asserted that if an employer fires an employee for failing to fulfill traditional sex stereotypes (not being feminine or masculine enough), the employer is firing the employee because of their sex. Thus, an employer who fires employees for being gay or transgender “intentionally discriminate[s] against individual men and women in part because of sex,” which “has always been prohibited by Title VII’s plain terms.”
The Court’s ruling was narrow. It explicitly states that it does not “purport to address bathrooms, locker rooms, or anything else of the kind.” This decision only allows employees who believe they were discriminated against based on their sexual orientation or gender identity to file lawsuits in the same way that people claiming race and religious discrimination may.
Employers should promptly review their policies and practices to ensure they include protection of sexual orientation and gender identity.
If you have questions or need assistance, reach out to Gardner Skelton’s employment team leader, Nicole Gardner, or to her teammates Erin Ball and Florence Thompson.
EmploymentJune 17, 2020