“An employer who fires an individual merely for being gay or transgender defies the law.” -U.S. Supreme Court

On June 15, 2020, the U.S. Supreme Court announced its ruling on whether an employer can fire an individual for being homosexual or transgender in Bostock v. Clay County, Georgia and two companion cases.  In a 6-3 majority opinion, the Court said “[t]he answer is clear”:  an employer may not fire an employee for being homosexual or transgender.

In arriving at the decision, the Court considered Title VII of the Civil Rights Act of 1964.  Title VII bans discrimination in the workplace based upon race, color, religion, sex, or national origin.  The Court’s decision is significant because it said the meaning of “sex” in Title VII is inseparable from sexual orientation and gender identity.  The Court held “[a]n employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex.  Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”

As an example, the Court discussed two employees, both attracted to men, who are identical in qualifications and experience but one is male and one is female. If the male employee is fired because he is attracted to men but the female employee is not, the employer has impermissibly based the decision on the employee’s sex.

Since firing an employee for their sexual orientation and gender identity is tantamount to firing the same employee for their sex, an employer may not intentionally fire an employee for being homosexual or transgender, even if it is only a part of the ultimate decision.

How Bostock Affects Employers

In Bostock, the Court elaborated on other employer practices that would violate the law.  Here are the key takeaways for employers:

1. Additional Motivations for Employment Practices are Irrelevant.

• An employer’s motivation behind a discriminatory practice or how they might label the practice is irrelevant.  The Court reasoned the motivations behind a discriminatory employment practice against LGBTQ+ employees violates the law for the same reasons an employer’s practice of mandating a “life expectancy” adjustment for female employees’ retirement contributions violated the law.  The “life expectancy” adjustment violated the law because it required female employees make larger pension fund contributions due to the longer life expectancy of women. The employer argued that its requirement wasn't motivated by the workers' sex but on actuarial tables demonstrating statistically relevant data. The Court held that Title VII focused on the treatment of individuals and the simple test was whether an individual female employee would have been treated the same regardless of her sex. Similarly, any additional motivations an employer may have for a particular employment practice that discriminates based upon sexual orientation or gender identity will violate the law.

2. Sexual Orientation and Gender Identity Need Not be the Sole or Primary Factor in Firing to Violate the Law

• The Court noted that the sole or primary factor in firing an employee need not be the employee’s sexual orientation or gender identity for it to be impermissible. Citing to an older case in which an employer refused to hire women with young children, the Court pointed out that the additional criteria of having young children did not negate the discrimination based on sex. It did not need to be the only factor, just a factor, to be discriminatory under Title VII. Thus, if an employee’s sexual orientation or gender identity was a factor at all in the firing of the employee, then the firing violates the law.

3. Attempts to Create "Equality" through Employment Practices May Violate the Law

• Some employment practices by employers attempt to treat the sexes equally, but when those practices treat one sex differently from another, they violate the law.  For example, even though the “life expectancy” adjustment was designed to achieve equality in the workplace, the adjustment required treating female employees differently. The Court said the employer’s motivations to create equality between the sexes (i.e., paying in at a level commensurate with what was expected to ultimately be paid out) was irrelevant, because the “life expectancy” adjustment, at its most basic level, discriminated based upon sex. Thus, the adjustment violated the law. Similarly, an employer terminating both female and male homosexual or transgender employees to achieve equality violates the law.

What Bostock does not address

Broader questions as to the effect of the Court’s ruling on issues such as sex-segregated bathrooms and locker rooms and sex-specific dress codes remain unanswered at this time. Also unanswered are questions involving the relationship between Title VII and federal statutory or constitutional provisions regarding religious freedom. Those were not issues raised by any of the defendants in the Bostock cases.

Moving Forward

The Bostock decision makes it clear that employment discrimination against LGBTQ+ employees is prohibited under Title VII of the Civil Rights Act. Employers are encouraged to review their employment practices, ant-discrimination and harassment policies, and handbooks to ensure that the appropriate protected categories are included. Furthermore, employers should update training materials and consider education and/or communication with staff at all levels to ensure compliant employment practices.

If you have questions or would like additional information about this Court ruling, please feel free to contact one of Martin Pringle’s employment law attorneys. Our employment law practice group would welcome the opportunity to assist you with any employee handbook, policy and procedure review and updates.