Supreme Court: Federal Law Protects Homosexual And Transgender Workers

June 16, 2020 | Kenneth A. Novikoff | Brian S. Conneely | John K. Diviney | Tamika Hardy | Keegan B. Sapp | Employment & Labor

The U.S. Supreme Court ruled Monday, June 15, 2020, that the ban on sex discrimination in Title VII of the Civil Rights Act of 1964 protects homosexual and transgender workers. In a 6 to 3 decision with Justice Neil M. Gorsuch writing for the majority, the Court interpreted the Civil Rights Act of 1964’s prohibition against discrimination based on sex to include discrimination based on sexual orientation and gender identity.

The Court issued its decision in the combined cases of Bostock v. Clayton County, Altitude Express v. Zarda, and R.G. & G.R. Harris Funeral Homes v. Equal Employment Opportunity Commission. The first two cases directly ask whether federal civil rights law prohibits sexual orientation discrimination and the third case asked whether federal civil rights law equally applies to transgender employees.

In Bostock, an Eleventh Circuit case, child welfare advocate Gerald Bostock’s alleges that his employer terminated him after he became more open about being gay and joined a gay recreational softball league.

In Altitude Express, a Second Circuit Case, skydiving instructor Donald Zarda alleges that his employer terminated him after he mentioned to a female customer, who had expressed concerns about being strapped to Mr. Zarda during a tandem dive, that he was “100 percent gay.”

In R.G. & G.R. Harris Funeral Homes Inc., a Sixth Circuit case, Aimee Stephens alleges that she was fired from a Michigan funeral home after announcing that she is a transgender woman and would start working in women’s clothing.

These cases concerned Title VII of the Civil Rights Act of 1964, which bars employment discrimination based on race, religion, national origin and sex. The question for the Court was whether discrimination “because of sex” applies to homosexual and transgender workers. The Eleventh Circuit held that Title VII does not prohibit employers from firing employees for being homosexual and so Mr. Bostock’s suit could be dismissed as a matter of law. The Second and Sixth Circuits, however, allowed the claims of Mr. Zarda and Ms. Stephens, respectively, to proceed.

Judge Gorsuch opined that “[a]n 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.”

Thus, if a male employee and a female employee are both attracted to men, but only the male employee is fired because of that attraction, then the employer is intentionally singling out the male employee, in part, based on the employee’s sex. Likewise, if a transgender employee and a female employee both identify as female, engage in the same activity, and only the transgender employee is fired, then the employer is intentionally penalizing a person for the sex he or she was identified as having at birth. In short, these adverse employment actions are undeniably based on sex, which is prohibited by Title VII of the Civil Rights Act of 1964.

The full text of the decision is available here.

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