Legal Alert: LGBTQ+ Community Now Protected Under EEOC

On Monday, June 15, 2020, the United States Supreme Court decided Bostock v. Clayton County in a 6-3 vote, confirming that it is unlawful under Title VII for an employer to fire or discriminate against an employee because they identify as gay or transgender. Title VII was enacted in 1964 and makes it “unlawful . . . for an employer to fail or refuse to hire or to discharge an 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). Prior to the Court’s recent decision, individuals who identified under LGBTQ+ were not recognized as individuals protected under Title VII’s forbiddance of discrimination because of sex.

Following the Court’s decision in this case, an employer who discriminates against an individual merely for being homosexual or transgender violates Title VII based on discrimination because of sex. While the facts of the case focus closely on the firing of three individuals because of their identification as either homosexual or transgender, the protection of Title VII also includes the hiring, promotions, or any other adverse employment action to any employee who identifies as homosexual or transgender. A statutory violation will occur if an employer intentionally relies, even just in part, on an individual employee’s sex when deciding whether or not to fire the employee. The Supreme Court expands Title VII to cover homosexuality and transgender status because discrimination on the basis of homosexuality or transgender status requires an employer to intentionally treat an individual differently on the basis of their sex. Therefore, an employer who intentionally discharges or penalizes an employee on the basis of being homosexual or transgender is also in violation of Title VII.

Just as sex is a but-for cause under Title VII when an employer discriminates against a homosexual or transgender individual, an employer who discriminates on the identification of being homosexual or transgender is basing their discrimination on the sex of that individual when making this decision. The Supreme Court further holds that labels and additional intention or motivations behind the discrimination will not make a difference. It does not matter whether other factors besides sex played a part in the reasoning behind the discrimination such as the plaintiff’s attraction to the same sex or the change in gender from birth; the plaintiff’s sex does not need to be the sole or primary reason for the discrimination that occurred. Additionally, an employer will also not be able to escape liability merely by showing that it treats males and females comparably as groups or because intentional discrimination based on homosexuality or transgender status is not intentional discrimination based on sex. Any employer that discriminates against an individual employee who identifies as either homosexual or transgender, necessarily and intentionally applies sex-based rules.

In conclusion, an employer who intentionally discriminates against an individual employee who identifies as homosexual or transgender, in part because of the individual’s sex, violates Title VII, even if the employer willingly subjects all male and female employees to the same rule. The law makes any employer who discriminates against a homosexual or transgender employee in violation of Title VII, no matter what adverse employment action the employer has taken.

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Dennis F. Dykhuizen, Partner｜[email protected]
Macie Hinen, Intern

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