This past June, the United States Supreme Court held that discrimination against gay and transgender employees is illegal under Tile VII of the Civil Rights Act of 1968, the federal law that prohibits discrimination in the workplace based on race, color, religion, sex, and national origin. Prior to this decision, courts around the country had disagreed as to whether Title VII’s prohibition against discrimination based on sex (and gender) also protects gay and transgender employees from discrimination at work. Now we know that it does.
The Supreme Court’s opinion was based on three cases in which employers fired long-time employees shortly after the employees revealed that they were gay or transgender. The first plaintiff, Gerald Bostock, was a child welfare advocate in Clayton County, Georgia. After a decade of successful employment, Mr. Bostock began participating in a gay recreational softball league and, soon after, influential members of the community allegedly made disparaging comments about him. Mr. Bostock was subsequently fired for conduct “unbecoming” to a county employee. The second plaintiff, Donald Zarda, was a skydiving instructor in New York. After several seasons with the company, Mr. Zarda mentioned that he was gay. He was fired days later. Aimee Stephens worked at a funeral home in Garden City, Michigan. When she was hired, she presented as male. Six years later, Ms. Stephens wrote a letter to her employer explaining that she was planning to transition and to “live and work full-time as a woman.” The funeral home fired her, telling her “this is not going to work out.”
The Supreme Court held that it is a violation of Title VII for an employer to fire someone for being gay or transgender, because “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.” If an employer fires a male employee for being attracted to men, the employer discriminates against him for a trait or action that it would tolerate in a female colleague. Similarly, if an employer fires a person who was identified as male at birth but who now identifies as female, but retains an otherwise identical employee who was identified as female at birth, the employer penalizes the person identified as male at birth for traits or actions that it tolerates in an employee identified as female at birth. In both cases, “the individual employee’s sex plays an unmistakable and impermissible role in the discharge decision.” In other words, to discriminate against a person for being gay or transgender also “requires an employer to intentionally treat [them] differently because of their sex.”
The Court clarified that an employer cannot avoid liability by arguing that its discrimination was motivated by the employee’s gender identity or sexual orientation, and not by the employee’s sex/gender. When an employer fires an employee because they are gay or transgender, there may be two causes—both the individual’s sex and something else, namely, the sex to which the individual is attracted or with which the individual identifies. But where sex is a cause, the employer can’t avoid liability by saying that another factor also contributed. Neither the label that the employer gives to the discriminatory act nor the motivations involved (ie, the employer’s argument that their intention was to fire the employee based on transgender status, for example, rather than based on sex) are relevant.
The Court also clarified that an employer cannot avoid liability by arguing that it would fire both male and female employees who are gay or transgender. That’s because Title VII prohibits discrimination against individuals, not against categories or groups. An employer who fires a woman for refusing his sexual advances cannot avoid liability by showing that he gave equal or preferential treatment to female employees in general. Nor is it a defense for an employer to say that it discriminates against both men and women because of sex: Instead of avoiding Title VII exposure, that employer doubles it.
Oregon law already prohibits discrimination in the workplace based on sexual orientation and gender identity. Now we know that federal law offers those same protections to LGBTQ employees. If you are interested, you can find the Court’s full written opinion here: https://www.supremecourt.gov/opinions/19pdf/17-1618_hfci.pdf.