“Sex” Means “Sex”: SCOTUS Extends Anti-Discrimination To LGBTQ Employees
On June 15, 2020, the United States Supreme Court (SCOTUS), by a vote of 6-3, ruled that the ban on sex discrimination in Title VII protects gay, lesbian and transgender employees. Title VII of the Civil Rights Act of 1964 prohibits employment discrimination “because of sex”; however, members of the LGBTQ community have not enjoyed this protection through federal legislation because some courts, including the 11th Circuit in which Georgia courts sit, had interpreted “because of sex” to exclude sexual orientation and sexual identity.
The Bostock ruling is a landmark decision. LOSO, LLC, had appraised our readers about the Bostock case here. To summarize briefly, Mr. Bostock’s employment with Clayton County, Georgia was terminated when his employer discovered that he was a gay man. Both lower courts upheld the termination.
Upon appeal to SCOTUS, in the majority’s opinion, Justice Neil Gorsuch framed the question before the Court as a straightforward one: “Today,” the Court stated, “we must decide whether an employer can fire someone simply for being homosexual or transgender.” The Court found that the answer to that question “is clear.” When an employer fires an employee “for being homosexual or transgender,” that employer “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.”
Justice Gorsuch explained that the Supreme Court generally interprets a law by looking at how the public would have understood the law when it was passed — “the ordinary public meaning” of the law. The Court noted that the word “sex” means either male or female. Thus, under the plain terms of Title VII, then, an employer violates Title VII “when it intentionally fires an individual employee based in part on sex,” even if “other factors besides the plaintiff’s sex contributed to the decision” and even if “the employer treated women as a group the same when compared to men as a group.” All that matters, the Court emphasized, is whether “changing the employee’s sex would have yielded a different choice by the employer.”
As an example, the Court cited the case of an employer with two employees who are both attracted to men and are, for purposes of comparison, identical but one is male and one is female. If the employer fires the male employee only because he is attracted to men, while keeping the female employee who is also attracted to men, the employer has violated Title VII by treated the sexes differently.
The Court rejected the idea that because Congress did not address sexual orientation or transgender status specifically in Title VII, the law does not protect LGBTQ employees. Instead, the Court made clear that discrimination against LGBTQ employees, “necessarily entails discrimination based on sex”. The decision noted that if Congress establishes a broad rule of “sex” in all its variations, without any exceptions, then “courts apply the broad rule.”
The Bostock decision may not have an earth shattering effect on employers who are located in jurisdictions where protection for LGBTQ employees have already recognized. But for all others, Bostock requires an immediate revision company policy and accompanying training for managers and supervisors. Contact us to see how we can help.
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