SCOTUS: Employers May Not Penalize Employees for Sexual Orientation/Identity

In a 6-3 landmark decision by the United States Supreme Court, the Court held that an employer who fires an individual merely for being gay or transgender violates Title VII of the Civil Rights Act of 1964.

Background

The ruling in Bostock v. Clayton County, Georgia case originated from three different sex discrimination claims under Title VII:

• Gerald Bostock worked for Clayton County, Georgia as a child welfare advocate. After a decade with the County, Mr. Bostock began participating in a gay recreational softball league. Not long after, influential members of the community allegedly made disparaging comments about Mr. Bostock’s sexual orientation and participation in the league. He was later fired for conduct “unbecoming” a County employee.

• Donald Zarda worked as a skydiving instructor at Altitude Express in New York. After several seasons with the Company, Mr. Zarda mentioned he was gay and, days later, was fired

• Aimee Stephens worked at R. G. & G. R. Harris Funeral Homes in Garden City, Michigan. When she got the job, Ms. Stephens presented as a male. Approximately two years into her employment clinicians diagnosed her with gender dysphoria and recommended she begin living as a woman. In her sixth year with the Company, Ms. Stephens wrote a letter to her employer explaining that she planned to “live and work full-time as a woman” after she returned from an upcoming vacation. The funeral home fired her before she left, telling her “this is not going to work out.”

While the Eleventh Circuit held that Title VII does not prohibit employers from firing employees for being gay (Bostock), the Second (Zarda) and Sixth (Stephens) Circuits allowed the sex discrimination claims to proceed.

Decision

The Supreme Court granted review to resolve the disagreement over the scope of Title VII’s protections for homosexual and transgender persons and held that an employer who intentionally penalizes an employee for being homosexual or transgender violates Title VII.

No Change in California Law

In California, employers with five or more employees must already comply with California’s Fair Employment & Housing Act (FEHA), which is a law prohibiting discrimination based on sex, gender, gender identity, gender expression, and sexual orientation, among other traits. CA Gov’t Code § 12940(a).

California recently deleted gender specific pronouns from the language used in FEHA and the California Family Rights Act (AB 1556 and SB 179) and requires covered employers (+5 employees) to educate employees about transgender rights. CA Gov’t Code § 12950(a)(2), 12950.1(a)(3). Covered employers must also post the Transgender Rights in the Workplace poster.

Employers with employees in other states who do not currently recognize these protections are advised to review and amend their equal employment opportunities and harassment policies to comply with the new Bostock ruling.

California employers who fail to comply with sex, gender identity, gender expression, and other protections may not only face a lawsuit based on California law, but may also have to defend Title VII violations, per the recent Court’s ruling. If you have questions regarding protected categories, training or posting requirements, do not hesitate to contact us.

Sue M. Bendavid and Tal Burnovski Yeyni are employment defense attorneys.