Today, June 15, 2020, the Supreme Court of the United States ruled on a much anticipated landmark decision related to discrimination based on sexual orientation and transgender status. Historically, the Civil Rights Act of 1964, Title VII, has made it “unlawful … for an employer to fail or refuse to hire or to discharge any individual, or otherwise, to discrimination against any individual … because of such individual’s race, color, religion, sex, or national origin.” 42 U .S. C. §2000e-2(a) (1). In the cases before the Court, the issue was whether an employer could terminate an employee simply for being homosexual or transgender. The debate presented in this matter primarily centered on the intent of Congress and the inclusion of sexual orientation or transgender status as it relates to the interpretation of the term “sex” under the Act.

There is no confusion that sex discrimination itself is prohibited under the Act. However, the decision by the Supreme Court today makes it clear that: “an employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.” Therefore, because discrimination on the basis of homosexuality or transgender status requires an employer to intentionally treat individual employees differently because of their sex, “an employer who intentionally penalizes an employee for being homosexual or transgender also violates Title VII.” In other words, the Court held that when an employer fires an employee based on their sexual orientation or transgender status, the employer necessarily intentionally discriminates against that individual in part because of their sex, and thus violates Title VII.The Court’s decision stems from the factual application of three cases. Two of the cases alleged discrimination based on sexual orientation and the third claimed discrimination based on transgender status:

•    In Altitude Express v. Zarda, a skydiving company in New York was sued by a former instructor, Donald Zarda, who contended he was terminated because he is gay.  His termination came days after he mentioned he was gay.

•   In Bostock v. Clayton County, Georgia, Gerald Bostock worked as a child-welfare-services coordinator.  Bostock claimed the county terminated him shortly after he began participating in a gay recreational softball league; and,

•   In R.G. & G.R. Harris Funeral Homes v. EEOC, Harris Funeral Homes fired Aimee Stephens, born biologically male, who after six years of employment with the funeral home informed the employer that she planned to “live and work full-time as a woman.”

Until this decision, sexual orientation or transgender status were not consider protected classes under federal law. Some states had already prohibited discrimination based on sexual orientation. For instance, in Wisconsin, sexual orientation is specifically identified as a protected class under state law.  While transgender status is not specifically named as a protected class, Wisconsin courts have found discrimination based upon transgender status to constitute prohibited gender discrimination under state law.

Key Takeaways stemming from the Supreme Court decision:

• Discrimination today, according to the Court, means what it roughly meant in 1964 when the Act was enacted: 1) to make a difference in treatment or favor (of one as compared with others); 2) to treat an individual worse than others who are similarly situated and; 3) as it relates to “disparate treatment”, the difference in treatment based on sex must be intentional. Therefore, an employer who intentionally treats a person worse because of sex – such as by firing the person for actions or attributes it would tolerate in an individual of another sex — discriminates against that person in violation of Title VII.
• It is not a defense for an employer to say it discriminates equally against both men and women. Title VII protects individuals of both sexes from discrimination. In other words, it does not matter if the employer treated women as a group the same when compared to men as a group.
• Even if the employer is willing to subject all male and female homosexual or transgender employees to the same rule, it violates the law based on the individual’s sex.
• An employer who discriminates against homosexual or transgender employees necessarily and intentionally applies sex-based rules, regardless of the intent of the employer.
• According to the Court, sexual orientation and transgender status are inseparable from an individual’s sex and that discriminating on those grounds requires an employer to intentionally treat individual employees differently because of their sex, therefore violating Title VII.
• The employee’s sex need not be the sole or primary cause of the employer’s adverse action; it need only be one reason for the action.
• The application of this rule to termination, applies equally to hiring practices. Therefore, denying an applicant due to his or her sexual orientation or transgender status, violates Title VII.

Recommendations:

• Review your nondiscrimination, harassment and equal opportunity employment policies and procedures;
• Immediately consult with your legal counsel to assist in the process of revising your policies and procedures to ensure compliance with this decision; and,
• Ensure your staff receive training and/or materials consistent with the protections under Title VII.

If you have any questions or concerns regarding this decision, or need assistance in reviewing and revising your policies and procedures or would like your employees to receive training on this or similarly related matters, please contact Saveon D. Grenell at sgrenell@buelowvetter.com or (262) 364-0313 or Joel S. Aziere at jaziere@buelowvetter.com or (262) 364-0250 or your Buelow Vetter attorney.