On June 15, 2020, the United States Supreme Court officially declared that LGBTQ persons are protected from discharge or discipline because of sex under the anti-discrimination provisions of Title VII of the Civil Rights Act of 1964. The Court’s landmark decision came as somewhat of a surprise considering that the Court’s current conservative majority was expected to move in the opposite direction.
The Court unequivocally stated that firing a person for being homosexual or transgender is “exactly what Title VII forbids,” because in making such a decision “sex plays a necessary and undisguisable role.” For the past 50 years, the phrase “because of sex” in Title VII had been limited to issues of men and women being treated differently based on gender or a failure to conform to stereotypical gender norms. The June 15 opinion marked the demise of this limited interpretation and the dawn of an expanded reading of this key phrase.
The Court plainly articulated that “[a]n employer violates Title VII when it intentionally fires an individual employee based in part on sex.” Employers cannot avoid this liability merely by showing that other reasons existed for an LGBTQ employee’s termination or that, on the whole, female employees were treated the same as male employees. The employer’s intent is highly relevant because any time an employer relies on sex in arriving at its decision to discharge an employee it has violated federal law. Of course, this is true even in discrimination cases that do not involve LGBTQ employees.
The Court tied its reasoning to several well-established Title VII cases including Price Waterhouse v. Hopkins and Oncale v. Sundowner Offshore Services, Inc. The Price Waterhouse case, decided in 1989, held that an employer violates Title VII when it engages in sex stereotyping, i.e., discriminating against an employee for not conforming to traditional gender norms. The Court drew a clear parallel to the Price Waterhouse sex stereotyping prohibitions and the employers’ terminations of the LGBTQ employees. The Court also invoked the 1998 holding from Oncale, where it first acknowledged that men were equally as susceptible as women to harassment and discriminatory treatment by male employees. In either circumstance the inquiry remains the same: would the employee have been treated differently for the same conduct if he or she were a different sex? If the answer is yes, then the employer has discriminated against the employee “because of sex” in violation of Title VII.
Notably, the Court left open for further discussion the issues of whether and to what extent this decision impacts religious employers such as religious educational institutions and non-profit organizations.
The decision came as a result of appeals in three cases from around the country, two of which centered on discrimination against gay persons and one that involved the unlawful termination of a transgender employee. One of those cases, Altitude Express, Inc. v. Zarda, involved Donald Zarda, a skydiving instructor who was terminated after a female customer complained that he told her he was “100 percent gay.” Zarda had been strapped to the customer’s back during a tandem dive. In another of those cases, Bostock v. Clayton County, Georgia, Gerald Bostock was fired from his position as a child welfare advocate after news surfaced that he was a member of a gay recreational softball league. The employer claimed his discharge was for conduct unbecoming of a county employee. The third case, R.G. & G.R. Harris Funeral Homes, Inc. v. EEOC, arose after Aimee Stephens, who presented as a male for the first two years of her employment, began identifying as a female and informed her employer that she intended to “live and work full-time as a woman.” Shortly before a planned vacation, Stephens was fired in a manner that clearly implicated her decision to live as a woman.
Prior to arriving before the Supreme Court, the Zarda and Bostock cases, were decided in favor of the employees. Although Zarda was decided by the Second Circuit and Bostock was decided by the Sixth Circuit, both courts agreed that the employers had violated Title VII and discriminated against the employees “because of sex.” By contrast, the Eleventh Circuit held in R.G. & G.R. Harris Funeral Homes that the employer’s decision to terminate Stephens did not implicate or violate Title VII. Along with these opposing outcomes, several other federal courts throughout the country had come to conflicting conclusions on the issue of whether Title VII’s protections extended to LGBTQ employees. For example, the Fourth Circuit, whose jurisdiction includes appeals of federal cases from Virginia, had maintained that LGBTQ employees were not protected from discrimination by Title VII. The Supreme Court’s June 15 opinion finally sets a single nationwide standard for all future matters involving discrimination against LGBTQ employees under Title VII. To be clear, this new Court decision means that LGBTQ employees are protected from any form of employee discipline, including termination, if the discipline is motivated in part by the employee’s LGBTQ status.
Practically, the Court’s holding will not drastically change things for Virginia employers as the recently enacted Virginia Values Act was going to usher in similar employment protections for LGBTQ employees as of July 1, 2020. However, the Supreme Court’s opinion has immediate effect as to federal law. This means that as of today LGBTQ employees may confidently file federal employment discrimination suits under Title VII with clear precedent in their favor, provided that they have exhausted all administrative remedies.
Employers should take note of the court’s decision and plan accordingly. To the extent they have not already made updates, employers should immediately make the necessary revisions to their internal policies and their employee handbooks to reflect the changed state of the law. It may also be needful to conduct new anti-harassment or anti-discrimination training and review hiring and performance protocols to ensure all criteria are relevant and objective.
For more information on this or other employment issues, please contact the author or any other member of the Vandeventer Black Labor & Employment team.