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"An Individual's Homosexuality or Transgender Status is Not Relevant to Employment Decisions"

The United States Supreme Court ended a split amongst the Circuit Courts on Monday, June 15, 2020, when it announced its landmark decision in Bostock v. Clayton County, Georgia, 590 U.S. _____ (2020) – that an employer who terminates an individual merely for being gay or transgender violates Title VII.

The Civil Rights Act of 1964, through Title VII, prohibits discrimination based on several characteristics, including sex, religion, national origin, and others. For many years, there was a split as to whether Title VII’s prohibition on discrimination based on an individual’s sex also included an individual’s sexual orientation or transgender status.

The Supreme Court, in Bostock, put a firm and final end to the split – “An individual’s homosexuality or transgender status is not relevant to employment decisions. That’s because it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”

Bostock was actually a consolidation of three separate cases: 1) Bostock v. Clayton County, Georgia; 2) Altitude Express, Inc., et al. v. Zarda et al., as Co-Independent Executors of the Estate of Zarda; and 3) R.G. & G.R. Harris Funeral Homes, Inc. v. Equal Employment Opportunity Commission, et al.; however, in each case, an individual was terminated solely for being homosexual or a transgender and brought an action for discrimination under Title VII.

Bostock, a child welfare advocate with Clayton County for over a decade, was terminated shortly after he began to participate in a gay recreational softball league for conduct “unbecoming” a county employee. After Bostock brought suit, the 11th Circuit held that Title VII did not prohibit employers from firing employees for being gay and affirmed the dismissal of Bostock’s suit as a matter of law.

Zarda was a skydiving instructor who, after several successful seasons, mentioned he was gay and was terminated days later. After Bostock brought suit, the 2nd Circuit held that sexual orientation discrimination violated Title VII and allowed Zarda’s case to proceed.

Aimee Stephens initially presented as a male when she first began her employment with R.G & G.R. Harris Funeral Homes. However, after several years with the company, she informed her employer that she was planning to “live and work full-time as a woman” upon returning from an upcoming vacation. Stephens was terminated before even leaving for vacation, with her employer telling her “this is not going to work out.” After Stephens brought suit, the 6th Circuit held that Title VII prohibits employers from firing employees because of their transgender status.

All three cases were consolidated by the Supreme Court who sought to address the issue of whether an employer can terminate someone simply for being homosexual or transgender. And the answer, under Title VII, is no.

The Supreme Court, in a decision authored by Justice Gorsuch, and joined by Chief Justice Roberts, and Justices Ginsburg, Breyer, Sotomayor, and Kagan (with dissents written by Justice Alito (joined by Justice Thomas) and Justice Kavanaugh) first emphasized that an employer cannot avoid Title VII liability simply by citing some other factor that contributed to its challenged decision. “If the employer intentionally relies in part on an individual employee’s sex when deciding to discharge the employee – put differently, if changing the employee’s sex would have yielded a different choice by the employer – a statutory violation has occurred.”

“When an employer fires an employee because she is homosexual or transgender, two causal factors may be in play – both the individual’s sex and something else (the sex to which the individual is attracted or with which the individual identifies). But Title VII doesn’t care. If an employer would not have discharged an employee but for that individual’s sex, the statute’s causation standard is met, and liability may attach.”

The Court then went on to reason that because “homosexuality and transgender status are inexplicably bound up with sex” that “[a]n individual’s homosexuality or transgender status is [therefore] not relevant to employment decisions.”

The Bostock decision is unquestionably a very important decision that provides the LGBTQ+ community with civil rights in the workplace and finally puts to bed the issue of whether an employer can discriminate against an individual based on their sexual orientation or transgender status. Employers who previously adhered to such discriminatory practices should take heed and change their policies and practices immediately.

Employers with questions are advised to consult with their legal counsel regarding specific questions or concerns. If you have any questions, or need assistance, please feel free to contact Jeremy D. Iosue or Jason T. Hartzell at (216) 651-0451.

This Employment Law Alert provides an overview of specific federal and/or state rules. It is not intended to be, and should not be construed as, legal advice for any particular situation or individual.

Copyright © 2020 Stefanik Iosue & Associates, LLC. All rights reserved.



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