The United States Supreme Court held on June 15, 2020 in the case of Bostock v. Clayton Cty., 140 S. Ct. 1731 (2020) that the long standing 1964 Civil Rights Act prohibits discrimination against gay, lesbian and transgender employees, even though this federal law does not mention gay, lesbian or transgender discrimination. How then did the U.S. Supreme Court arrive at this holding?
The Supreme Court held that employers each violated Title VII of the Civil Rights Act of 1964 when they fired a long-time employee shortly after the employee revealed that he or she was homosexual or transgender because it was impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex. Significantly, the Supreme Court added that, as enacted, Title VII prohibits all forms of discrimination because of sex, however they may manifest themselves or whatever other labels might attach to them.
The Court held it is not a defense for an employer to say it discriminates against both men and women because of sex. Title VII of the Civil Rights Act of 1964 works to protect individuals of both sexes from discrimination, and does so equally, the Court stated. So, the Court reasoned, an employer who fires a woman, Hannah, because she is insufficiently feminine and also fires a man, Bob, for being insufficiently masculine may treat men and women as groups more or less equally. But, the Court emphasized, in both cases the employer fires an individual in part because of sex. Instead of avoiding Title VII exposure, this employer doubles it, the Court concluded.
A dissenting Justice argued that Title VII of the Civil Rights Act of 1964 prohibits employment discrimination on any of five specified grounds: “race, color, religion, sex, [and] national origin.” and that neither “sexual orientation” nor “gender identity” appears on that list. For the past 45 years, the dissenting Justice reasoned, bills have been introduced in Congress to add “sexual orientation” to the list, and in recent years, bills have included “gender identity” as well, but to date, none has passed both Houses. Thus, how could the Court rule as it did?
The Court reasoned “[w]e agree that homosexuality and transgender status are distinct concepts from sex. But, as we’ve seen, discrimination based on homosexuality or transgender status necessarily entails discrimination based on sex; the first cannot happen without the second.”
Thus, the Court held that LGBTQ employment discrimination was really another form of sex or gender discrimination, which has been rendered unlawful in the workplace since 1964.
To determine if you have a claim for LGBTQ discrimination, call Dale Bernard at 440-546-7500.