Compliance Check: Title VII Now Protects Sexual Orientation and Transgender Status

It is commonplace to see a list of the various protected classes in an Equal Employment Opportunity statement in a company’s employee handbook, employee policies, or other employee documents. For many of us, we can easily rattle off those classes protected from discrimination or harassment under Title VII: race, color, sex, religion, national origin, ethnicity, etc. However, a United States Supreme Court decision has expanded that list.

On June 15, 2020, in Bostock v. Clayton County, Georgia, the United States Supreme Court ruled that Title VII of the Civil Rights Act of 1964 also protects gay and transgender workers from workplace discrimination. In Bostock, Clayton County had fired Gerald Bostock for conduct “unbecoming” a county employee shortly after he began participating in a gay recreational softball league. In the decision authored by Justice Neil Gorsuch, the Court held that an employer who fires an individual merely because that individual is gay or transgender violates Title VII because “[s]ex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”

The Court actually considered two similar cases when it took up Bostock. In Altitude Express, Inc., et al. v. Zarda, Altitude Express fired Donald Zarda days after he mentioned being gay. And in R.G. & G.R. Harris Funeral Homes, Inc. v. Equal Employment Opportunity Commission, et al., Harris Funeral Homes had fired Aimee Stephens, who presented as a male when she was hired, after she informed her employer that she planned to “live and work full-tie as a woman.” These employees had also brought suit under Title VII alleging unlawful discrimination on the basis of sex.

The Court focused its decision on the ordinary and plain meaning of Title VII when it was enacted. Specifically, the Court considered “the ordinary public meaning of Title VII’s command that it is ‘unlawful . . . for an employer to fail or refuse to hire or to discharge any individual, or otherwise 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.” The Court concluded that the term “sex” referred to biological distinctions between male and female.

The Court applied this understanding of the term “sex” to Title VII’s “but for” causation standard. In the Court’s words, “but for” causation “is established whenever a particular outcome would not have happened ‘but for’ the purported cause. . . . In other words, a but-for test directs us to change one thing at a time and see if the outcome changes. If it does, we have found a but-for cause.” Applying this causation standard, the Court concluded that discrimination on the basis of homosexuality or transgender status necessarily requires an individual to intentionally treat individual employees differently because of their sex. Thus, an employer who intentionally penalizes an employee for being homosexual or transgender also violates Title VII because sex is a “but-for” cause when an employer discriminates against homosexual or transgender employees.

In the wake of this decision, employers would be wise to review their employee handbooks, policies, or other documents to ensure that sexual orientation and gender identity are now also included within the classes or statuses that Title VII protects. In the wake of the #MeToo Movement, the Equal Employment Opportunity Commission took a renewed interest in sexual assault and sexual harassment cases, and it is possible that this decision will cause the EEOC to take a hard look at cases alleging discrimination on the basis of sexual orientation and gender identity. As a result, employers can best protect themselves and their employees by ensuring that they are appropriately training and educating on Title VII’s new protections.

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