Employers May Need to Take Action
Courts have struggled to uniformly decide whether Title VII of the Civil Rights Act of 1964, which makes it unlawful for employers to discriminate because of a person’s “sex,” protects employees from discrimination based on their sexual orientation or transgender status. Specifically, courts have not consistently interpreted Title VII’s prohibition on discrimination “because of . . . sex.” Originally, courts considering the question held that Title VII’s ban did not cover employees who were gay, and most said it did not protect employees based on transgender status. Within the last decade, however, many courts and the Equal Employment Opportunity Commission began to interpret “sex” to include LGBTQ employees. Not all courts, nor the Department of Justice, agreed with this interpretation. This issue was presented to the Supreme Court of the United States through three cases.
Bostock v. Clayton County, Georgia and Altitude Express v. Zarda
In Bostock, Child Welfare Services Coordinator Gerald Bostock brought a lawsuit against Clayton County in Georgia. Not long after he began participating in a gay recreational softball league, influential members of the community allegedly made disparaging comments about Mr. Bostock’s sexual orientation and participation in the league. He was fired shortly thereafter. The Northern District of Georgia dismissed the case on the basis that sexual orientation was not protected under Title VII. The Eleventh Circuit affirmed.
In Zarda, Skydiving Instructor Donald Zarda alleged that he was terminated after revealing he was gay. The Second Circuit permitted the case to proceed, holding that discrimination based on sexual orientation violated Title VII.
Both holdings were appealed to the Supreme Court.
EEOC v. RG & GR Harris Funeral Homes, Inc.
In Harris, Funeral Director Aimee Stephens sued her employer, claiming that she was terminated because of her transgender status. She transitioned from male to female. She also alleged that she was discriminated against for refusing to conform to sex-based stereotypes. She further alleged that her employer’s dress policy was discriminatory. Although the procedural history in Harris was more complex than that in the above cases, the Sixth Circuit ultimately held that Title VII prohibits employers from firing employees because of their transgender status. The employer appealed to the Supreme Court.
The Supreme Court’s Decision
On June 15, the Supreme Court ruled in the three cases, holding that Title VII’s protections extend to gay and transgender employees. The Supreme Court pointed out that none of the employers in the above cases disputed that they fired the plaintiffs because of their sexual orientation or gender identity. Rather, the employers argued that even intentional discrimination against employees based on their homosexuality or transgender status was permissible under Title VII. The Supreme Court, through a 6-3 majority, rejected the employers’ arguments. Justice Gorsuch, a surprise author of the majority decision, joined by Chief Justice Roberts and the Court’s four more liberal members, reasoned: “An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in member of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”
This decision is now the law of the land.
Employers may want to consider:
- Updating practices and policies to expressly protect LGBTQ employees;
- Analyzing and updating job descriptions or clothing policies that require an employee to wear gender-conforming clothing or hairstyles;
- That even facially neutral policies could subject employers to risk, if applied in a discriminatory manner that disproportionately impacts LGBTQ employees;
- Conducting training and/or updating training to address fair and equal treatment of LGBTQ employees; and
- Confirming their employee benefit plans do not discriminate against LGBTQ employees. This could happen, for example, when a health or welfare plan:
- Provides coverage to opposite-sex spouses, but not same-sex spouses, or vice versa;
- Provides coverage to same-sex domestic partners, but not opposite-sex domestic partners, or vice versa;
- Denies coverage to transgender employees, or charges them a higher premium; or
- Does not provide medically necessary mental health benefits, hormone therapy, and some level of transition surgery benefits for transgender employees.
To help with training on various Title VII issues, AGC offers Diversity Rules: Harassment Prevention Training, a DVD with two videos – one for supervisors and one for nonsupervisors – designed to aid construction employers with harassment prevention, sensitivity, and correction training. AGC also offers resources for building an inclusive and welcoming workplace through its recently launched Culture of CARE program. For help with legal matters, contact the authors of this article (see below) or a member of the AGC Labor and Employment Law Council.
Editor’s Note: This article was written by guest authors Joseph A. Kroeger, Y. Rubi Bujanda, and Nancy K. Campbell of the law firm Snell & Wilmer, and is published by AGC with permission. The purpose of this publication is to provide readers with information on current topics of general interest and nothing herein shall be construed to create, offer, or memorialize the existence of an attorney-client relationship. The content should not be considered legal advice or opinion, because it may not apply to the specific facts of a particular matter. As guidance in areas is constantly changing and evolving, you should consider checking for updated guidance, or consult with legal counsel, before making any decisions.