U.S. Supreme Court Rules That Federal Law Protects LGBTQ Workers From Employment Discrimination Article submitted by Blue Level Sponsor, Sally Piefer, Lindner & Marsack, S.C.
O
n June 15, 2020, the U.S. Supreme ruled that Title VII of the Civil Rights Act bars discrimination on the basis of gender identity and sexual orientation. Title VII makes it “unlawful…for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual…because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. §2000e-2(a)(1). An employer violates Title VII when it intentionally terminates an individual based, even in part, on his or her sex. The decision, Bostock v. Clayton County, involved three consolidated cases. In each case, the employee sued his/her former employer, alleging sex discrimination under Title VII, after they were terminated because of their homosexual or transgender identity: • Gerald Bostock worked for more than a decade as a child welfare advocate. After he began participating in a gay recreational softball league, influential members of the community allegedly made disparaging comments about his sexual orientation and participation in the league. Soon, he was fired for conduct “unbecoming” a county employee. • Donald Zarda worked as a skydiving instructor in New York. After several seasons with the company, he mentioned that he was gay and, days later, was fired. • Aimee Stephens worked at a funeral home in Michigan. When she got the job, she presented as a male, but two years later, she was diagnosed with gender dysphoria and recommended that she begin living as a woman. During her sixth year with the company, she 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.”
The employers in each case did not dispute that they fired the employees as a result of their homosexual or transgender identity. Rather, they argued that the “because of sex” language in Title VII’s proscriptions does not extend protection to the employees on the basis of their gender identity or sexual orientation. Justice Gorsuch, generally thought to be a conservative on the Court, wrote the majority opinion. The Supreme Court disagreed with the employers’ arguments, holding that an employer who fires (or otherwise discriminates against) an individual for being homosexual or transgender necessarily and intentionally discriminates against that individual, in part, because of sex. “Sex plays a necessary and undisguisable role in the decision,” which is exactly what Title VII forbids. Therefore, the Court determined that any employer who intentionally treats individuals differently because of their homosexual or transgender identity, penalizes those individuals on the basis of their sex in violation of Title VII.
The Seventh Circuit (covering Wisconsin, Illinois, and Indiana) had already ruled that Title VII’s protection covered discrimination on the basis of sexual orientation and gender identity, the Supreme Court’s decision firmly solidifies that discrimination on the basis of gender identity or sexual orientation will be treated consistently through the U.S. and its territories. Wisconsin’s state discrimination laws already extend protections to individuals because of sexual orientation and gender identity, but this decision now firmly reminds employers that policies, procedures, practices and employment decisions must provide protections to LGBTQ employees, or risk violation of federal law as well. Lindner & Marsack, S.C., represents employers in all areas of labor and employment law. If you have labor or employment matters involving your business, please contact Sally Piefer at spiefer@lindner-marsack.com or (414) 226-4818.
14 | TDMAW HQ (262) 532-2440 www.TDMAW.org
