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Tag: SCOTUS

“Sex” Means “Sex”: SCOTUS Extends Anti-Discrimination To LGBTQ Employees

June 18, 2020

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.

Does Title VII Include Discrimination Based on Sexual Orientation?

May 23, 2019

By Hauwa Adamu

In Bostock v Clayton County and Evans v Georgia Regional Hospital, the US Court of Appeals for the Eleventh Circuit held that reliance on Title VII of the Civil Rights Act of 1964 as prohibiting discrimination on the basis of sexual orientation failed to state a claim recognizable under law. 

Background

Evans v Georgia Regional Hospital

Jameka Evans worked at the Hospital as a Security Officer from August 2012 to October 11, 2013. During her time at the Hospital, she was discriminated against on the basis of her sex and targeted for termination for failing to carry herself in a “traditional womanly” manner. She experienced a hostile work environment. She was denied equal pay or work, harassed and physically assaulted.

Although she was a gay woman, she did not broadcast her sexuality. However, it was evident that she identified with the male gender, because of how she represented herself. Evans was punished because her status as a gay female did not comport with the Hospital’s gender stereotypes.

Evans lodged a complaint with the Human Resource department about some adverse treatment at work. Shortly thereafter she also complained that she was harassed and retaliated against because of her complaint. HR indicated that the Hospital had investigated Evans’ complaint, and had found no evidence that she had been singled out or targeted. Evans voluntarily resigned.

Bostock v Clayton County

Gerald Bostock, a gay man, began working for Clayton County, Georgia, as a child welfare service coordinator in 2003. During his 10-year tenure at Clayton County, Bostock received positive performance evaluations and numerous accolades. In 2013, Bostock began participating in a gay recreational softball league. 

During a meeting in which Bostock’s supervisor was present, at least one individual openly made disparaging remarks about Bostock’s sexual orientation and his participation in the softball league. Around the same time, Clayton County informed Bostock that it would be conducting an internal audit of the program funds he managed as part of his job.

Shortly after, Clayton County terminated Bostock allegedly for conduct unbecoming of its employees. Bostock filed a charge of discrimination with EEOC following which, he filed a pro se lawsuit against the County alleging discrimination based on sexual orientation, in violation of Title VII.

The Courts

In Evans, at the United States District Court for the Southern District of Georgia, Magistrate judge Smith issued a report and recommendation (R&R) dismissing Evans Complaint for failure to state a claim. The Judge concluded that while same-sex harassment can be actionable under Title VII, Title VII discrimination claims based upon the plaintiff’s sexual orientation or perceived sexual orientation is not. Judge Randall Hall concurred with Judge Smith’s R&R and dismissed Evan’s case. 

The Eleventh Circuit Court of Appeals rejected Evans request for an en banc rehearing, stating that Evans’ pro se Complaint failed to plead facts sufficient to create a plausible inference that she suffered discrimination. It stated: “Evans did not provide enough factual matter to plausibly suggest that her decision to present herself in a masculine manner led to the alleged adverse employment actions.” 

Evans then filed a petition for certiorari, requesting review from the SCOTUS. Regardless of the fact that several friends-of-the-court briefs were filed urging the SCOTUS to hear the case, including briefs from 79 businesses and organizations, the Court denied review of the case, leaving for another day resolution on whether Title VII prohibits discrimination based on sexual orientation.

In Bostock, the US District Court for the Northern District of Georgia and the Eleventh Circuit Court of Appeals dismissed the case in the same grounds.

After more than nine conferences during which the US Supreme Court could have acted on the petition for review, the SCOTUS has granted review in this case and two others that concern anti-LGBTQ employment discrimination. The cases will be heard in the Court’s 2019-2020 term to create a binding precedent and decide the issue for all courts.

“The Letter of the Law” – SCOTUS Uses Grammar to Grant More Protection from Age Discrimination and Retaliation

January 19, 2019

Mount Lemmon Fire District v. Guido (No. 17-587), the November 2018 Supreme Court of the United States decision, broadens protection from age discrimination to more employees of government employers.

The Age Discrimination in Employment Act (ADEA) already protects people over the age of forty (40) who work for private employers with more than twenty (20) employees, but it was not clear whether employees of a government employer with fewer than twenty (20) employees had the same protection. Violations of the ADEA can result in liability for back pay, front pay, liquidated damages and attorneys fees. There are many government employers, or “political subdivisions”, with fewer than 20 employees, so it was important to determine just what they could be liable for.

In this case, it was the Mount Lemmon Fire District, a political subdivision of Arizona. The fire District was having a bad financial year, so they fired their two oldest (and most expensive) employees, fire captains John Guido and Dennis Rankin. John and Dennis sued the Fire District, saying they were protected by the ADEA. The Fire Department tried to escape liability by saying they were not technically an “employer” under the ADEA because they had fewer than 20 employees, so were not subject to the ADEA.

The district court agreed that the Fire District was not an “employer”, but a three-judge panel of the Ninth Circuit reversed, siding with John and Dennis. The case then went to the Supreme Court where, in a unanimous (8-0) decision authored by Justice Ruth Bader Ginsburg, the Court held that the ADEA applies to all state political subdivisions, regardless of the number of employees there employed.

Let’s look at how they got there. Basically this is where grammar comes in handy. The ADEA is written as follows:

“The term ’employer’ means a person engaged in an industry affecting commerce who has twenty or more employees…The term also means (1) any agent of such a person, and (2) a State or political subdivision of a State…” 29 U. S. C. §630(b).

The Court looked at the plain language of the statute and found that the fact that the definition is broken into two sentences, and includes the words “also means” establishes two different categories:

1. persons engaged in an industry affecting commerce with 20 or more employees; and

2. states or political subdivisions.

By applying this logic, the Court was also able to determine that the second category has no numerical limitation.

As an example, if a definition said: “the term ‘airplane’ means a vehicle propelled by a minimum of two jet engines for air travel. The term also means a vehicle that uses propeller power to achieve air travel,” we would understand that the two sentences, and the words “also means” indicate that the two things listed as examples of airplanes are entirely separate, and should be regarded as such. We would further understand that just because category one (jet planes) requires a minimum of two jet engines, category two (propeller planes) states no minimum number of propellers, and could very well have only one and still be considered an airplane under the definition.

By using grammar, the Supreme Court determined that the Fire District, and all other States and political subdivisions, are subject the provisions of the ADEA, regardless of their number of full time employees.

The lessons to be learned here are not only are all government employers barred from discriminating against employees based on their age, but also the way statutes are written (or “the letter of the law”) can have real impact on the outcome of a case.

No More Strength in Numbers: Class Action Waivers Are Legal

June 18, 2018

The Supreme Court of the United States (SCOTUS) has ruled that class action waivers in employment arbitration agreements do not violate the National Labor Relations Act (NLRA) in Epic Systems Corp. v. Lewis, No. 16-285; Ernst & Young LLP et al. v. Morris et al., No. 16-300; and National Labor Relations Board v. Murphy Oil USA, Inc., et al., No. 16-307 (May 21, 2018). 

This is significant for employees, especially executives to read your employment contract carefully upon offer to understand how your right to sue is being limited by arbitration clauses and class action waivers.

For employers the rulings are also relevant in that it can be used to limit your organization’s exposure to litigation through expertly drafted arbitration agreements.

How Long Is Too Long: Leave of Absence Under the ADA

April 20, 2018

Can finite leave of absence of more than one month can be a reasonable accommodation?

Federal circuit courts have rendered conflicting decisions regarding how much leave is reasonable under the Americans with Disabilities Act (“ADA”). Although given the opportunity to settle the dispute, earlier this month the U.S. Supreme Court declined to review a decision by the Seventh Circuit Court of Appeals holding that a multi-month leave of absence is beyond the scope of a reasonable accommodation under the ADA.

The Seventh Circuit had issued two decisions holding that even if the employee had a disability and an essential requirement of the job was impaired by the disability, the employee was not a qualified individual entitled to ADA protections on the reasoning that the accommodation sought (a multi-month leave) would not help the employee do the job, but would keep the employee from performing job functions altogether.

Ultimately the Seventh Circuit found that while the ADA may require brief periods of medical leave, such as days or even weeks, multiple month long periods of leave are not required under the ADA. The Court stated: “…not working is not a means to perform the job’s essential functions…”.

The Eleventh Circuit (in which the State of Georgia is located) is of the same opinion.

While it seems all appeals courts, and even the Equal Employment Opportunity Commission (“EEOC”), agree that indefinite leave is never a requirement, the EEOC disagrees with the Courts in that it has stated that placing a limit on the amount of disability leave to which an employee is entitled is a clear violation of the ADA.

Given the EEOC’s opinion on the issue, Georgia employers are not advised to take the position of rigidity with regards to how much leave is reasonable. Rather, employers are encouraged engage in the interactive process, consider each case individually, and err on the side of caution until further notice from SCOTUS.

News Flash: Extension of Dodd Frank Protection to Internal Whistleblowers

August 9, 2017

The Supreme Court of the United States has agreed to hear this important issue:

Does the Dodd-Frank Wall Street Reform and Consumer Protection Act provide protections to whistleblowers who file their reports internally (within the organization) and not with the Securities and Exchange Commission (SEC)? 

SCOTUS has agreed to decide this matter commencing with oral arguments in the Fall of 2017. This decision could result in an extension of whistleblower protection empowering employees and incentivizing organizations to be fully compliant with various legislation.