For years, employers were advised that an individual’s sexual orientation or gender identity were separate from an individual’s sex, for discrimination purposes under Title VII, and therefore not protected by the law.  In many states, where there was no job protection for individuals who were either homosexual or transgender, those statuses could legally be used by employers to terminate employees (with some caveats).  Prior to this week, the EEOC itself advised that sexuality and gender identity were not protected under Title VII.  However, everything changed this week with the U.S. Supreme Court’s decision in Bostock v. Clayton County, Georgia.

Bostock is actually three cases combined into one decision by the Court.  In the original Bostock, the plaintiff was a long-term, successful employee as a County child welfare advocate.  It was allegedly only after the plaintiff began playing in a gay recreational softball league that he was terminated for conduct unbecoming a county employee.

In Zarda v. Altitude Express, the plaintiff (now deceased) worked several seasons as a skydiving instructor and was terminated less than a week after he mentioned that he was gay.  Finally, in Stephens v. R.G. and G.R. Funeral Homes, the plaintiff (now deceased) worked for almost six years before announcing that she would be living and working as a female.  Not long after the announcement, she was fired by her employer, who told her the situation “was not going to work out.”

All three employees were allegedly terminated without any regard for their performance while at work, but without the protection of statute, were removed from their job, seemingly without recourse.  However, in a surprising decision by a conservative majority Supreme Court, it held that employment decisions made based on an individual’s sexuality or gender identity are decisions “because of sex” and protected under Title VII of the Civil Rights Act.

Justice Gorsuch, a hotly-contested nominee from the current President, authored the opinion for the 6-3 majority.  In the opinion, the Court finds that unlike other statutes that explicitly exclude things that are not supposed to be included in the definition of a word, there is no such exclusion in Title VII regarding discrimination.  Because of this, the Court found that the law allowed for a broad application of the phrase “because of sex.”

This is not the first time the Court has expanded on the phrase “because of sex.”  In Oncale v. Sundowner Offshore Services, Inc., the Court allowed for a same-sex sexual harassment claim when the plaintiff was not deemed “masculine enough” by his colleagues, and received terrible treatment from both his co-workers as well as his employer.  The Court determined that the plaintiff could proceed because the treatment was based on the expected characteristics of males that were not portrayed by the plaintiff.

With that decision in mind, this Court found it was not too much of a stretch to find that an individual’s choice of sexual partner or gender identity could be inextricably intertwined (to borrow from the parlance of labor law) with an individual’s sex.  The Court held, “For an employer to discriminate against employees for being homosexual or transgender, the employer must intentionally discriminate against individual men and women in part because of sex,” as they do not comport with what once were traditional ideals of what it meant to be a man or a woman.  The majority rejected the dissents’ reasoning that the drafters of Title VII would never have anticipated that the statute would have been interpreted broadly enough to protect homosexual and transgender employees.  The majority indicated that there might have been those who felt the language of the statute already protected those statuses (despite 50 plus years of no case law providing such an interpretation)!  In an interesting twist, both the majority and the dissent seemed to cling to now deceased Justice Scalia’s textualism philosophy to reach opposite results.

What does this mean for employers?  Well, that depends.  Hopefully, you or your organization have never made an employee’s sexuality or gender status an issue when making employment decisions.  If you have chosen to discriminate against people based on those immutable characteristics, you must now stop.    Many states , including Minnesota, had already created legislation to protect individuals based on their sexuality or gender identity.  It turns out that, according to the Supreme Court at least, those additional protections were unnecessary, as individuals with those statuses were already protected.  However, because sexuality and gender identity are not federal protected statuses, employer can expect a number of cases that would only be heard in state court to be headed to federal court in search of greater awards for plaintiffs.

In summary, the world of workplace discrimination is an entirely different environment.  And even though the Supreme Court spelled out its reasoning quite clearly in its decision, it still can be a difficult decision as to whether your organization has crossed a line into discriminatory conduct.  If you, or your organization need assistance with matters of workplace discrimination, contact the Wiley Law Office, for advice that works.