The case of Bostock v. Clayton County was a consolidation of three cases from different judicial circuits regarding the applicability of Title VII of the Civil Rights Act of 1964, which provides that it is “unlawful . . . for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex or national origin.” 42 U.S.C. §2000e–2(a)(1).
In all three cases the employers argued that Title VII does not prohibit firing someone for being gay or transgender because the text of the statute makes no mention of such classes of persons being protected against discrimination. The employers further argued that it should matter that if asked in a conversation about why they were fired, the fired employees would likely say it was due to being gay or being transgender.
The arguments by the plaintiff employees focused on these firings being discrimination based upon sex; that to discriminate against a person for being gay or transgender is to discriminate against them because of their sex. The parties on both sides agreed that the term “sex” as used in Title VII referred to the biological distinctions between male and female.
In a 6-3 decision, the Supreme Court, in an opinion written by Justice Gorsuch, concluded that when an employer fires an individual for being gay or transgender, the employer is firing that individual due to traits or actions it would not have questioned in persons of a different sex. Therefore, sex plays a “necessary and undisguisable role in the decision”, which is exactly what Title VII forbids.
The Supreme Court concluded that to fire an employee who was identified at birth as biologically male for dating or marrying another man, but not doing so when an employee who is biologically female does the same thing, violates Title VII by discriminating on the basis of the sex of the individual employee. Similarly, for an employer to fire an employee who is identified at birth as biologically female for living and outwardly identifying as male, when the employer would not fire an employee identified at birth as male for doing the same thing, violates Title VII by discriminating on the basis of sex.
Employers should take note that Title VII operates on the basis of “but for causation” so it does not matter if there are other factors involved in the decision to take adverse action against the employee. If the employer would not have discharged an employee but for that individual’s sex, the causation standard is met, and the employer is liable under Title VII. Since the Supreme Court has now concluded that discriminating against homosexual or transgender persons constitutes discrimination on the basis of sex, employers must be aware that any decision involving the hiring, firing, compensation, benefits, terms or conditions of employment in which the fact that that person is gay or transgender is a factor, can be found to have violated Title VII.
Employers need to take immediate action to ensure that those responsible for personnel matters are educated and kept up to date on these and other changes impacting the employment arena.
If you have questions regarding this or other employment-related matters, contact Stephen Asbel, Partner in Reger Rizzo & Darnall’s Corporate Department at 215.495.6523, or via email at firstname.lastname@example.org.
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