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Sexual Orientation and Transgender Status are Protected by Title VII

In the long fight for equality, the Supreme Court officially ruled that dismissing an employee for being homosexual or transgender violates the Civil Rights Act of 1964 under Title VII. In 1964, Congress “outlawed discrimination in the workplace on the basis of race, color, religion, sex, or national origin”. The Supreme Court decision on June 15, 2020, concluded these cases are examples of discrimination based on sex; that sex is a “necessary and undisguised” factor in the employer’s decision.

So, what brought these cases to the Supreme Court?

In 2013, Aimee Stephens, a transgender woman was fired from R.G. & G.R. Harris Funeral Homes. Mrs. Stephens was a recently promoted employee in good-standing. In 2013, she announced to family, friends, and co-workers she was starting treatment to transition into a woman. She informed her colleagues she will return to work dressed accordingly. Three days after the announcement, her employer fired her. In response, Mrs. Stephens sued under Title VII, alleging unlawful discrimination based on sex. The Sixth Circuit concluded that Title VII does not allow an employer to fire an employee because the individual is transgender. In Mrs. Stephens case, there was no question her transition was the reason for her termination. Her former boss testified in court that because Mrs. Stephens was “no longer going to present himself as a man”, they felt her relationship with the company would no longer work. Sadly, Mrs. Stephens died at age 59 in May of 2020 due to kidney failure. Her heirs did not let this end her fight for equal rights.

In a companion case, skydiving instructor Donald Zarda was fired after mentioning to a customer that Zarda was gay. Despite sever several years of employment with Altitude Express the company fired Mr. Zarda the following day. This happened in 2010. Mr. Zarda timely sued for discrimination but passed away in 2014 in a BASE-jumping accident.

Bostock v. Clayton County is the case most heavily associated with the Supreme Court’s decision. Gerald Bostock was a child welfare advocate in Clayton County Georgia. Mr. Bostock was a stellar employee for over a decade, having received national awards for his work. In his spare time, Mr. Bostock joined a gay recreational softball league. Members of his community made derogatory commentary regarding Mr. Bostock’s sexual orientation. His boss fired him for “conduct ‘unbecoming’ of a county employee”. Mr. Bostock sued, and the Eleventh Circuit concluded that Title VII does not prohibit employers from firing employees for sexual orientation.

Although Title VII does not specifically mention “sexual orientation,” “homosexuality” or “transgender status,” the court made clear that treating someone differently because of their sexual orientation or transgender status is a form of sex discrimination:

We agree that homosexuality and transgender status are distinct concepts from sex. But, as we’ve seen, discrimination based on homosexuality or transgender status necessarily entails discrimination based on sex; the first cannot happen without the second.

Think of it this way, if you fire a man because he wears a dress but won’t fire a woman because she wears a dress, that is treating someone differently “because of” his sex. If you discriminate against men who have romantic relationships with men, but don’t discriminate against women who have romantic relationships with men, you are discriminating against the person “based on sex.”

The origins and the individuals involved is a huge part of understanding why Title VII needed to be articulated. For many people, the ruling was shocking. For others, it was a long-waited landmark. Discrimination costs people their livelihood and puts their future at risk. Although some of these incidents took a decade to resolve, the Supreme Court’s decision and their stories help employees and employers recognize that every individual has the right to be treated equally in the workplace.

We anticipate the ripple effects in several areas of our society. hopefully, we will see positive changes in the workplace, but there is speculation regarding how religious-affiliated schools or workplaces will respond or what decisions will be needed. For now, many will celebrate this decision as a win for LGBTQ+ individuals and communities.

If you haven’t read the opinion, you can read it here. I highly recommend reading it. I think the decision was well-written, and tackles many of the arguments raised when trying to justify differential treatment. Ultimately, the arguments do not withstand judicial scrutiny.

Original article by Hannah Grossen, Legal Assistant. Edited by Robert E. Nuddleman

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