WORKPLACE DISCRIMINATION: OLD DEFINITION NEW MEANING « Law Offices of Timothy Bowles | Top Employment Law Firm in Los Angeles


The Supreme Court’s “Unexpected” Expansion of Equal Rights for Gay and Transgender Employees

The Civil Rights Act of 1964 is America’s foremost protection against employment discrimination (also known as “Title VII”). Yet, for more than five decades, courts have applied this law to preserve such “equal rights” only for some, and decidedly not for homosexual or transgender persons.

No longer. In a decision which its conservative author acknowledged as “unexpected,” the U.S. Supreme Court has ruled that an employer who fires an individual for being gay or transgender violates Title VII’s prohibition against sex discrimination. Bostock v. Clayton County, Georgia (June 15, 2020).

Title VII makes it “unlawful … for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual … because of such individual’s race, color, religion, sex, or national origin.”

Justice Gorsuch, joined by five other members of the court, found that discrimination against a person for his or her sexual orientation or sexual identity was by definition discrimination because of that person’s sex.

Justice Gorsuch reasoned: “An individual’s homosexuality or transgender status is not relevant to employment decisions. That’s because it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex. Consider, for example, an employer with two employees, both of whom are attracted to men. The two individuals are, to the employer’s mind, materially identical in all respects, except that one is a man and the other a woman. If the employer fires the male employee for no reason other than the fact he is attracted to men, the employer discriminates against him for traits or actions it tolerates in his female colleague. Put differently, the employer intentionally singles out an employee to fire based in part on the employee’s sex, and the affected employee’s sex is a but-for cause of his discharge.”

Until this decision, it was possible for private employers in some 25 states to terminate a gay or transgender person for their sexual orientation and/or identity alone. Nationwide, it had also been possible for an employer to argue that even if sexual orientation or identity had been a factor in a worker’s termination, there should be no liability as he or she would have been fired for other reasons in any event (so-called “mixed motive” cases).

Again, no more. An employer violates Title VII when it intentionally fires an individual employee based even in part on (i.e., “because of”) sex (and thus, even in part, on his/her sexual orientation or identity). “It makes no difference if other factors besides the employee’s sex contributed to the decision or that the employer treated women as a group the same when compared to men as a group.”

This profound expansion of Title VII’s principles must also apply to every other individual characteristic that law protects against discrimination: race, color, religion and national origin.

The decision thus calls for employers to take close stock of their policies, practices and training programs to ensure that workplace-protected characteristics are never a factor in any employment decision. Personnel management, whether in hiring, advancement, compensation, discipline, termination or any other major aspect of employment, must be grounded in worker ability, qualification and productivity.

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Please contact Tim BowlesCindy Bamforth or Helena Kobrin for more information.

June, 2020