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US Supreme Court Holds That Title VII Protects Homosexual And Transgender Employees

Written by: Melanie V. Slaton, Esq.,  Mariel E. Smith, Esq., and Nicholas J. Garcia, Esq.

On June 15, 2020, the Supreme Court of the United States (“SCOTUS”) delivered the landmark opinion in Bostock v. Clayton County, Georgia and broadened Title VII liability to include actions by an employer based on the homosexuality or transgender status of the individual employee.  SCOTUS summarizes the facts before it in one simple sentence: “An employer fired a long-time employee shortly after the employee revealed that he or she is homosexual or transgender – and allegedly for no other reason than the employee’s homosexuality or transgender status.”

SCOTUS faced the task of determining the “ordinary public meaning of Title VII’s command that it is ‘unlawful . . . for an employer to fail or refuse to hire or to discharge any individual, or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s . . . sex . . . .”  The “because of sex” language of Title VII was a focal point of SCOTUS’s analysis.  SCOTUS notes that the “because of” test invokes the same analysis as the traditional “but-for causation” test, which SCOTUS simply defines as “a particular outcome would not have happened ‘but for’ the purported cause.”  SCOTUS applied the “but-for causation” test in determining that an employer “cannot avoid liability just by citing some other factor that contributed to its challenged employment decision.”  In other words, sex does not have to be the sole reason for the adverse employment decision for an employer to be liable under Title VII ; it only has to be at least one of the reasons for the adverse employment decision.

So, what does this mean for Employers?  Employers may be thinking, “But, Title VII does not use the terms ‘homosexuality’ or ‘transgender?’”  How can an adverse employment decision based on those statuses be discrimination because of sex?”  SCOTUS answers that inquiry by stating, “[H]omosexuality or transgender status are inextricably bound up with sex. . . . To discriminate on these grounds requires an employer to intentionally treat individual employees differently because of their sex.”

In other words, an employer cannot possibly make an employment decision based on an individual’s homosexuality or transgender status without considering the individual’s sex or gender.  Furthermore, Title VII protects individuals of both sexes from discrimination.  Therefore, an employer cannot fire both a homosexual man and a homosexual woman and operate under the belief that there is no discriminatory conduct.  In that scenario, the employer has discriminated against each individual and based its decisions on each individual’s sex.

From this analysis comes a “straightforward rule:” “An employer violates Title VII when it intentionally fires [or otherwise discriminates] based in part on sex.”  SCOTUS articulates exactly how employers can apply this straightforward rule and avoid Title VII:  “An individual employee’s sex is ‘not relevant to the selection, evaluation, or compensation of employees.’”  And given that an employer cannot consider homosexuality or transgender status without considering sex, “An individual’s homosexuality or transgender status is not relevant to employment decisions.

It is important for employers to focus purely and solely on the credentials and qualifications that ARE RELEVANT to the positions within their company. Although the Bostock cases specifically dealt with homosexuality and transgender employees, the analysis applies to any protected class (race, color, religion, sex, or national origin).  If an employer considers such irrelevant factors, including the homosexuality or transgender status of the individual employee or prospective employee, in reaching its employment decision, the employer’s actions are in violation of Title VII.

Employers are urged to review and update their policies and/or employee handbooks to ensure they encompass the Bostock decision.  Additionally, Employers should consider training for managers and supervisors in order to encourage management to adhere to Title VII as it relates to homosexual and/or transgender employees.