In a six to four decision the Supreme Court ruled that "An employer who fires an individual for being transgender violates Title VII."
In a surprising decision, the Supreme Court of the United States ruled in Bostock v. Clayton County, that LGBTQ employees are protected from job discrimination on the basis of sex under Title VII of the Civil Rights Act.
In a six to three decision the Supreme Court ruled that “An employer who fires an individual for being transgender violates Title VII.” The Supreme Court further went on to generate a rule stating that when an employer “intentionally fires an individual employee based in part on sex. It makes no difference if other factors besides the plaintiff’s sex contributed to the decision.” And because “discrimination on the basis of homosexuality or transgender status requires an employer to intentionally treat individual employees differently because of their sex, an employer who intentionally penalizes an employee for being a homosexual or transgender violates Title VII.” (Emphasis Added)
WHAT DOES THE DECISION IN BOSTOCK V. CLAYTON COUNTY ESTABLISH?
The Supreme Court has established that terminating an employee due to their LGBTQ status is a violation of Title VII of the Civil Rights Act of 1964. Most importantly, the Supreme Court has created precedent establishing that being transgender or homosexual is a protected trait, but its decision has also eliminated many defenses by employers claiming that there may be other reasons for termination besides that of sex and has found that even if the employer provides other legitimate business reasons for termination if one of the reasons was the employees LGBTQ status they will be found to have violated Title VII.
WHAT ARE LGBTQ PROTECTIONS IN THE WORKPLACE?
Under Title VII of the Civil Rights Act, an employer may not terminate an employee or take any negative action that would affect an employee’s employment status on the basis of their LGBTQ status. Under Title VII, an employer may not discriminate with regard to any term, condition, or privilege of employment.
No person should be denied employment or be treated differently with regard to any workplace decision on their basis of sex. An Employer cannot make decisions on the basis of stereotypes or assumptions related to being LGBTQ.
For example in the Supreme Court Case of Bostock v. Clayton County, the Court found that an employer violated Title VII after one of its employees began participating in a gay recreational softball league and the employer’s decision for termination was that it found the employee’s conduct to be “unbecoming.” Another example the Supreme Court provided is where an employer terminated an employee who worked in a funeral home who presented as a male and when she was hired, advised the employer that she planned to “live and work full-time as a woman.” In both of these cases, the Supreme Court found that the employer violated Title VII.
WHO DOES TITLE VII OF THE CIVIL RIGHTS ACT APPLY TO?
Title VII of the Civil Rights Act of 1964 applies to employers in both the private and public sectors that have 15 or more employees. It also applies to the federal government, employment agencies, and labor organizations. No person hired by an Employer covered under Title VII, or a person applying to employment to that company, can be denied employment or treated differently on the basis of the person’s LGBTQ status.
As Title VII is a Federal Law it is applicable to all states in the United States. However, because of its number of employee limitations, often state laws or local ordinances allow recourse to cover employees who work for employers with fewer than 15 employees. Therefore, it is important that if there is any discrimination, all applicable laws are carefully considered.
EXAMPLES OF LGBTQ DISCRIMINATION IN THE WORKPLACE
- Failing to hire an applicant because she is a transgender woman.
- Firing an employee because he is planning or has made a gender transition.
- Denying an employee equal access to a common restroom corresponding to the employee’s gender identity.
- Harassing an employee because of a gender transition, such as by intentionally and persistently failing to use the name and gender pronoun that correspond to the gender identity with which the employee identifies, and which the employee has communicated to management and employees.
- Denying an employee a promotion because he is gay or straight.
- Discriminating in terms, conditions, or privileges of employment, such as providing a lower salary to an employee because of sexual orientation, or denying spousal health insurance benefits to a female employee because her legal spouse is a woman while providing spousal health insurance to a male employee whose legal spouse is a woman.
WHAT IS RETALIATION UNDER TITLE VII OF THE CIVIL RIGHTS ACT?
The same laws that prohibit discrimination based on race, color, sex, religion, national origin, age, and disability also prohibit retaliation against individuals who oppose unlawful discrimination or participate in an employment discrimination proceeding.
Retaliation occurs when an employer, employment agency, or labor organization takes adverse action against a covered individual because he or she engaged in a protected activity.
Example of Protected Activities include:
- Complaining about alleged discrimination against you or others.
- Filing a charge of discrimination with a federal agency like the Equal Employment Opportunity Commission (EEOC).
- Refusing to obey an order reasonably believed to be discriminatory.
WHAT TO DO IF I BELIEVE MY EMPLOYER IS RETALIATING AGAINST ME BECAUSE I AM LGBTQ?
Take Action. In order to be successful in a discrimination claim, it is crucial to focus on the facts, specific issues, and details. For example, look for any comments/ actions an employer may make towards you because of your LGBTQ status, that he/she would not make if you were not LGBTQ.
Make a record of the offensive actions. Keep a journal of the discriminatory conduct. Your notes should include the date, time, location, and names of the people who witnessed the incident. Include a brief description of what happened.
Report the Discrimination. If the conduct rises to the level of a demotion, or you believe the conduct is offensive or non-stop, report it to the department of human resources. Make sure to do this in writing. This is particularly important, as your employer has a duty to remedy the situation and assure that the discrimination stops, and if you believe you are being retaliated against for making the report then you may also have a retaliation claim under Title VII of the Civil Rights Act.
PENALTIES FOR AN EMPLOYER WHO DISCRIMINATES TOWARDS AN LGBTQ EMPLOYEE
For intentional discrimination, employees may seek a jury trial, with compensatory and punitive damages up to the maximum limitations established by the Civil Rights Act of 1991 according to the employer’s number of employees: 15-100 employees, a maximum of $50,000; for 101-200 employees, a maximum of $100,000; for 201-500 employees, a maximum of $200,000; and for over 500 employees, a maximum of $300,000. Remedies of back pay, reinstatement, and retroactive seniority are available for all types of discrimination, whether intentional or disparate impact.
WHO TO CONTACT FOR INFORMATION ON LGBTQ DISCRIMINATION?
The Equal Employment Opportunity Commission (EEOC) interprets and enforces Title VII’s prohibition of sex discrimination as forbidding any employment discrimination based on gender identity or sexual orientation. These protections apply regardless of any contrary state or local laws.
Before contacting the EEOC, we recommend that you discuss your employment situation with a qualified employment attorney if you believe that you are being discriminated against in your employment, due to being LGBTQ. A qualified labor and employment lawyer can recommend an appropriate legal strategy that ensures your legal rights are protected and your legal claims are successfully advanced.
- What You Should Know: The EEOC and the Enforcement Protections for LGBT Workers
- Department of Labor Policies in Gender Identity
- Bostock v. Clayton County, Georgia
- CONTACT US to set up a consultation to go over all of your legal options.