Work in the Time of COVID-19: FAQs for Employers

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In a landmark decision this month, the Supreme Court of the United States ruled that Title VII of the Civil Rights Act of 1964 (Title VII) prohibits workplace discrimination on the basis of sexual orientation or transgender status. The case, entitled Bostock v. Clayton County, Georgia, involved three plaintiffs who all alleged they were fired simply for being homosexual or transgender. Although the Second and Sixth Circuits allowed such claims alleging sex discrimination under Title VII to go forward, the Eleventh Circuit held that Title VII does not prohibit employers from firing employees for being gay.

Under its express terms, 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.” Writing for the majority, Justice Neil Gorsuch explained that it “is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.” Two scenarios clarified that conclusion.

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. Or take an employer who fires a transgender person who was identified as a male at birth but who now identifies as a female. If the employer retains an otherwise identical employee who was identified as female at birth, the employer intentionally penalizes a person identified as male at birth for traits or actions that it tolerates in an employee identified as female at birth. Again, the individual employee’s sex plays an unmistakable and impermissible role in the discharge decision.

Based on this reasoning, the Supreme Court held that an employer who fires an individual merely for being gay or transgender violates Title VII.

We can expect challenges to the holding based on religious freedom, as the court emphasized that it remains “deeply concerned with preserving the promise of the free exercise of religion enshrined in our Constitution” and pointed out that Title VII itself contains an express statutory exception for religious organizations. However, this exception does not apply to the majority of businesses who now must ensure they do not discriminate on the basis of sexual orientation or gender identity. In response to Bostock, employers should update their equal employment opportunity and anti-harassment and discrimination policies to ensure they expressly prohibit discrimination on the basis of sexual orientation and transgender status. In addition, employers should revise their harassment and discrimination training materials to include training that informs employees that discriminating against or harassing others in the workplace due to sexual orientation or transgender status is prohibited. Should you need assistance updating your policies and training materials, the employment law attorneys at Poyner Spruill are available to help.


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