National Employment Perspective | Focus On Sexual Orientation and Gender Identity Under Title VII

Shook, Hardy & Bacon L.L.P.

Gay and Trans Rights under Title VII

On June 15, 2020, the U.S. Supreme Court issued its opinion in Bostock v. Clayton County, holding an employer that fires an individual merely for being gay or transgender violates Title VII. This opinion creates a significant and new zone of protection for LGBTQ workers, and correspondingly, a new source of liability for employers. This alert outlines the facts of the suit, the history of sexual orientation protections under Title VII and the state of the law following this decision.

The Facts

The Court’s decision in Bostock v. Clayton County consolidated three cases: Bostock v. Clayton County, Altitude Express, Inc. v. Zarda and R. G. & G. R. Harris Funeral Homes, Inc. v. Equal Employment Opportunity Commission.

Bostock

Gerald Bostock is a gay man who began working for the juvenile court system in Clayton County, Georgia, in 2003. He joined a gay softball league in January 2013, and unnamed Clayton County employees criticized Bostock’s participation in the league and his sexual orientation. In April of that year, Clayton County audited Bostock’s program, and in June, the County fired Bostock for mismanaging program funds and for “conduct unbecoming of a county employee.” Bostock sued, alleging his employer fired him because of his sexual orientation.

Zarda

Donald Zarda was a gay man who worked as a skydiving instructor for Altitude Express. In 2010, Rosanna Orellana and her boyfriend went skydiving at Altitude Express. Zarda was paired with Orellana in a tandem skydiving experience, in which he was to be strapped tightly to her back. Before the dive, Zarda informed Orellana that he was gay in an attempt to ease the awkwardness of the two being strapped together. After the dive, Orellana’s boyfriend complained to the company that Zarda had disclosed his sexual orientation. Altitude Express fired Zarda, claiming he had failed to provide an enjoyable experience for the customer. Like Bostock, Zarda filed a lawsuit claiming he was fired because of his sexual orientation.

Stephens

Aimee Stephens was a transgender woman who began working at Harris Funeral Homes in 2007. When she was hired, Stephens dressed as a man and went by a traditionally male name, but in 2013, she wrote a letter to the owner of Harris Homes stating she intended to transition to a woman. Two weeks later, the owner of Harris Homes fired Stephens, stating expressly that the reason for termination was Stephens’ decision to transition to a woman.

The History

In 1964, President Lyndon Johnson signed into law the Civil Rights Act, which included Title VII, forbidding discrimination in the workplace. Specifically, Title VII contains the following language:

It shall be an unlawful employment practice for an employer … to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.

Since the enactment of the Civil Rights Act, courts gradually adopted a broader understanding of the word “sex” in Title VII. As a result, before the Supreme Court’s decisions in Bostock, “sex” discrimination included not only discrimination on the basis of gender, but also sexual harassment and discrimination on the basis of sex stereotypes. Even with these expansions, the Supreme Court had never determined whether “sex” included sexual orientation in the context of Title VII.

The Bostock Decision

The Parties’ Arguments

Arguing that discrimination on the basis of “sex,” as used in the language of Title VII, contemplates discrimination for sexual orientation, the plaintiffs emphasized that “sexual orientation is defined in part by a person’s sex”—“one simply cannot consider an individual’s sexual orientation without first considering his sex.” During oral argument, plaintiffs’ counsel opened: “When a[n] employer fires a male employee for dating men but does not fire female employees who date men, he violates Title VII.”

On the other hand, the employers principally argued that (1) the original public meaning of “sex” at the time Congress passed Title VII in 1964 did not contemplate sexual orientation, based on the legislative history, both before and after the passing of Title VII, and (2) “sex” and “sexual orientation” are distinct concepts and distinct bases for discrimination.

The Court’s Decision

In a 6-3 opinion written by Justice Neil Gorsuch, the Supreme Court held that an employer that fires an individual for being gay or transgender violates Title VII. The majority opinion held that “sex,” even as it was understood in 1964, plays a “necessary and undisguisable role” in an employer’s decision to discriminate on the basis of sexual orientation.

Relying on myriad analogies, the Court illustrated that “sex” and “sexual orientation” are inextricably meshed. For instance, Justice Gorsuch offered a hypothetical job application form containing a box titled “homosexual,” which one could check. Justice Gorsuch posited that it simply was not possible to explain the term “homosexual” without resorting to “sex”:

There is no way for an applicant to decide whether to check the homosexual or transgender box without considering sex. To see why, imagine an applicant doesn’t know what the words homosexual or transgender mean. Then try writing out instructions for who should check the box without using the words man, woman, or sex (or some synonym). It can’t be done.

The Court then held, because discrimination based on “sexual orientation” necessarily requires that one discriminate on “sex,” it is prohibited by Title VII.

The Future

Bostock v. Clayton County certainly represents a symbolic continuation of the previous Court’s expansion of LGBTQ rights. It is of no small significance that Neil Gorsuch, a Trump appointee, penned the opinion. But—in terms of its effect—many states and employers have already extended these protections locally. To that extent, Bostock may do more to unify the law at the federal level than to change it.

One large question left open by Bostock will be the interplay between Title VII and the Religious Freedom Restoration Act, which can bar the application of employment discrimination statutes in the face of certain First Amendment rights. But, as the Court noted, these “are questions for future cases.”

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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