The U.S. Supreme Court ruled that federal law protects gay and transgender workers from job discrimination. Justice Gorsuch wrote the opinion by the court. He was joined by Chief Justice Roberts and Justices Ginsburg, Breyer, Sotomayor, and Kagan to form a 6-3 majority, interpreting the longstanding federal ban on sex discrimination in the workplace to cover bias on the basis of sexual orientation and gender identity. The case, Bostock v. Clayton County, Georgia, was argued on October 8, 2019, and decided June 15, 2020.
There had been a split amongst the U.S. Circuit Courts of Appeal. As explained in the summary of the case:
- Clayton County, Georgia, fired Gerald Bostock for conduct “unbecoming” a county employee shortly after he began participating in a gay recreational softball league.
- Altitude Express fired Donald Zarda days after he mentioned being gay.
- G. & G. R. Harris Funeral Homes fired Aimee Stephens, who presented as a male when she was hired after she informed her employer that she planned to “live and work full-time as a woman.”
Each employee sued, alleging sex discrimination under Title VII of the Civil Rights Act of 1964. The Eleventh Circuit held that Title VII does not prohibit employers from firing employees for being gay and so Mr. Bostock’s suit could be dismissed as a matter of law. The Second and Sixth Circuits, however, allowed the claims of Mr. Zarda and Ms. Stephens, respectively, to proceed.
In oral arguments before the courts, there was no dispute as to whether the employer discharged employees for their sexual orientation or gender identity. The employers admitted to doing this and argued that it was not discrimination based on sex, but based on their orientation or gender identity.
Justice Gorsuch explained that the employers argued it should make a difference that plaintiffs would likely respond in conversation that they were fired for being gay or transgender and not because of sex. He countered by finding that conversational conventions do not control Title VII’s legal analysis, which asks simply whether sex is a ‘but-for’ cause. He also ruled that it is not a defense to insist that intentional discrimination based on homosexuality or transgender status is not intentional discrimination based on sex. An employer who discriminates against homosexual or transgender employees necessarily and intentionally applies sex-based rules.
While for states like Colorado and Utah, this does not appear to be a change from what their statutes already provide, it is a change for Arizona and Wyoming. Arizona prohibits sexual orientation in public employment only by executive order.
It should be noted that in Utah, an employer is not prohibited from adopting reasonable dress and grooming standards or from adopting reasonable rules designating sex-specific facilities, as long as the employer’s rules provide reasonable accommodations based upon an individual’s gender identity. Religious organizations, as well as affiliated universities and corporations, are exempt from this law. Further, the law protects an employee seeking to express their religious or moral beliefs and commitments in the workplace in a reasonable, non-disruptive, and non-harassing way on equal terms with a similar expression of beliefs or commitments permitted by employers in the workplace.
Both Colorado and Utah prohibit an employer from taking any adverse actions against employees for lawful expression outside the workplace regarding religious, political, or personal convictions. However, in Colorado, there is an exception if it is a conflict of interest due to the employee’s position in the workplace.
For many employers in many states, there will either be large or small changes based on what is now required by this ruling. If you are a member and have a practice that concerns you, please contact one of our attorneys.