sexual orientation - Horton Management Law

On June 15, 2020, the U.S. Supreme Court issued a landmark decision extending employment discrimination protections to LGBTQ employees across the country. Title VII of the Civil Rights Act of 1964 prohibits discrimination in the workplace on the basis of race, color, religion, sex, or national origin. Unlike some state employment discrimination statutes, Title VII does not expressly address sexual orientation or gender discrimination. Before this ruling, federal courts had disagreed whether Title VII’s prohibition of discrimination based on “sex” extended into those areas. The Supreme Court’s decision conclusively answers that question in the affirmative.

Case Background

The Supreme Court’s opinion came out of three separate cases involving employers who fired their employees allegedly for identifying as gay or transgender. The employees sued their employers for sex discrimination under Title VII.

In Bostock v. Clayton County, the Supreme Court ruled that Title VII protects gay and transgender workers from workplace discrimination. Justice Neil Gorsuch wrote the 6-3 majority’s opinion holding: “An employer violates Title VII when it intentionally fires an individual employee based in part on sex . . . [b]ecause 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 homosexual or transgender also violates Title VII”. In other words, this decision generally prohibits employers from disciplining, firing, failing or refusing to hire, or otherwise discriminating against an employee (or a prospective employee) because of their sexual orientation or gender identity.

Majority Rationale

The Supreme Court focused on the meanings of the terms used in Title VII at the time of its enactment. The majority considered the ordinary public meaning of “sex,” finding that the term refers to the biological distinction between males and females. After establishing the applicable definition of “sex,” the Court applied the “but for” causation standard to establish if the defendant employers had violated Title VII. This standard asks whether a particular outcome would not have happened ‘but for’ the alleged discriminatory basis. In this case, the employers would not have fired the plaintiffs, “but for” the employees’ sexual orientation or transgender status. The Court held that as long as the plaintiff’s sex was the “but for” cause of the termination, it was enough to trigger Title VII liability.

Dissenting Views

The three dissenting justices relied on strict constructionist views of the definition of “sex”. Specifically, they focused on what they felt the average person would have viewed the term to mean when Congress enacted Title VII in 1964. According to Justice Alito, at that time, “[d]iscrimination ‘because of sex’ was not understood as having anything to do with discrimination because of sexual orientation or transgender status.”

Justice Kavanaugh reasoned that the Court should rely on the “ordinary meaning” rather than the “literal meaning” of “sex”. He then concluded that “discrimination because of sex” does not encompass “gender identity” or “sexual orientation” discrimination.

New York Impact

The Supreme Court ruling will not have much practical impact on employees and employers in New York. In 2016, the New York State Division of Human Rights issued regulations interpreting the protected category “sex” to include discrimination on the basis of gender identity and the status of being transgender. The regulations defined “gender identity” as “having or being perceived as having a gender identity, self-image, appearance, behavior or expression whether or not that gender identity, self-image, appearance, behavior or expression is different from that traditionally associated with the sex assigned to that person at birth”. Then, in 2019 the New York Human Rights Law was amended to include “gender or identity or expression” among the statutory characteristics protected from employment discrimination.

The New York State Human Rights Law had already prohibited discrimination based on sexual orientation since 2003.

For more, read New York GENDA Amends Human Rights Law.

Religious Institutions

The Supreme Court discussed concerns about Title VII carveouts for religious institutions. The First Amendment bars applying employment discrimination laws “to claims concerning the employment relationship between a religious institution and its ministers”. The Court decided not to decide this issue and left the question for future cases. The decision also does not specifically resolve issues like sex-segregated bathrooms and locker rooms.

Update Your Policies

Employers subject to Title VII (most with at least 15 employees) now clearly may not take adverse employment action against an employee or a prospective employee based on their homosexuality or transgender status. If an employer discriminates based on employee’s “sex” status, including sexual orientation or transgender status, they may be liable for monetary damages. This can include lost wages, compensatory damages, attorneys’ fees, and punitive damages. Especially if your business was not already subject to state laws prohibiting these forms of discrimination, you should promptly review and update policies and training materials.

On February 26, 2018, the U.S. Court of Appeals for the Second Circuit ruled that federal law prohibits employment discrimination based on sexual orientation. Title VII of the Civil Rights Act of 1964 outlaws workplace discrimination because of “race, color, religion, sex, or national origin”. Unlike many state statutes, it does not specifically address sexual orientation discrimination.

In this ruling, the Second Circuit concludes that Title VII’s protection of “sex” encompasses sexual orientation. The decision establishes binding authority throughout New York, Connecticut, and Vermont. The court overruled its earlier decisions where it held that Title VII did not prohibit sexual orientation discrimination.

What Is Sex?

In reaching its decision, the court assumed that “sex,” as used in Title VII, means “biologically male or female.”

The Second Circuit referenced its earlier stated, and often applied, position that “Title VII should be interpreted broadly to achieve equal employment opportunity”. It noted that Congress’ intent was to make sex irrelevant to employment decisions. And that the Supreme Court has found Title VII to apply not just to sex itself, but also to traits such as life expectancy and non-conformity with gender norms.

According to the court:

“Because one cannot fully define a person’s sexual orientation without identifying his or her sex, sexual orientation is a function of sex. Indeed sexual orientation is doubly delineated by sex because it is a function of both a person’s sex and the sex of those to whom he or she is attracted.”

In sum, the court wrote: “We now conclude that sexual orientation discrimination is motivated, at least in part, by sex and is thus a subset of sex discrimination.”

Other Recent Court Decisions on Sexual Orientation Discrimination

For 50 years, the U.S. Equal Employment Opportunity Commission (EEOC) had not formally enforced Title VII’s reference to “sex” to include “sexual orientation.” During that time, most courts similarly read Title VII to not cover sexual orientation.

In 2015 the EEOC first ruled that “sexual orientation is inherently a ‘sex‐based consideration;’ accordingly an allegation of discrimination based on sexual orientation is necessarily an allegation of sex discrimination under Title VII.” The Second Circuit is the third federal appeals court to consider the question since that EEOC ruling.

In March 2017, the U.S. Court of Appeals for the Eleventh Circuit declined to recognize sexual orientation claims under Title VII. The Eleventh Circuit covers Alabama, Florida, and Georgia.

Then, in April 2017, the U.S. Court of Appeals for the Seventh Circuit reversed its earlier position and found that “discrimination on the basis of sexual orientation is a form of sex discrimination”. The Seventh Circuit covers Illinois, Indiana, and Wisconsin.

Immediate Impact

For now, employers within Connecticut, New York, and Vermont must assume that Title VII prohibits them from discriminating based on sexual orientation. On a day-to-day basis, this should not be a significant development. State law in each of these states already prohibits sexual orientation discrimination in employment. However, the ruling opens up additional procedural options for employees claiming this form of discrimination. And additional remedies may be available to them under Title VII.

Will This Decision Stand?

Probably not.

Even the Executive Branch of the federal Government disagrees about the right outcome. The EEOC continued to support the plaintiff in this case. However, the Justice Department pressed the Second Circuit not to find Title VII to prohibit sexual orientation discrimination. Several other interested constituents submitted third-party briefs.

Notably, the Second Circuit’s decision was not unanimous. Eight judges issued written opinions. Three of the 13 judges dissented to at least some parts of the majority opinion.

As of now, it seems likely that the defendant employer will ask the U.S. Supreme Court to review the Second Circuit’s decision. With competing interpretations between the Circuit Courts, it would not be surprising for the Supreme Court to take this case of high public interest.

With an apparent 5-4 conservative majority, the Supreme Court may well take the historical approach of rejecting claims of sexual orientation discrimination under Title VII.

The Second Circuit’s full decision in Zarda v. Altitude Express, Inc., is available here.

Tag: sexual orientation

U.S. Supreme Court Prohibits Sexual Orientation & Gender Discrimination Nationwide