Farleigh Wada Witt’s Kelly Tilden Weighs in on SCOTUS Anti-LGBTQ+ Discrimination Ruling

Tilden dissects the Bostock v. Clayton County court case and outlines best practices for credit unions moving forward.

9/1/2020 

Editor’s Note: The following is a contributed piece from Kelly R. Tilden of credit union law firm, Farleigh Wada Witt on the recent SCOTUS ruling protecting LGBTQ+ employees from workplace discrimination.

Countless Americans waited with a mix of fear and anticipation for the U.S. Supreme Court to issue its ruling in Bostock v. Clayton County on June 15. The Supreme Court held in a 6-3 decision that Title VII of the Civil Rights Act does forbid discrimination due to an employee’s sexual orientation or gender identity.

A recent study revealed that 4.5% of the adult population in the United States identifies as gay, bisexual, lesbian, or transgender. Based on this statistic, approximately 14 million individuals and their loved ones are impacted by this decision. While over 20 states, including Oregon and Washington, and a number of cities and counties (including 10 cities in Idaho) had already stepped up to enact laws prohibiting discrimination due to sexual orientation or gender identity, there was a split in the federal courts regarding whether Title VII’s “based on sex” prohibition extended to protect individuals from discrimination due to sexual orientation or gender identity. The Bostock case put that argument to rest.

The ruling addressed three related cases in which the plaintiff employees alleged that they were fired due to their sexuality or gender identity, and the defendant employers all admitted that the employee’s homosexuality or gender identity were reasons for termination. Gerald Bostock, the named plaintiff, was fired from his position as a juvenile court counselor for “conduct unbecoming of a county employee” after he joined a gay softball team in Clayton County Georgia. Aimee Stephens was fired after she disclosed to her funeral home employer that she was transitioning and would identify as a female. The third plaintiff, Donald Zarda, was fired shortly after disclosing that he was a homosexual at work. While the employers did not deny that they fired the employees because of sexual orientation or gender identity, the employers each argued in court that such discrimination was not prohibited by Title VII and thus permissible.

Title VII of the Civil Rights Act prohibits employers with 15 or more employees from discriminating because of race, color, religion, national origin, and sex when making employee related decisions, such as hiring, firing, determining compensation or benefits, or setting other terms, conditions, or privileges of employment. In Bostock, the question before the Court was whether these three employers who fired individuals for being homosexual or transgender fired these persons “for traits or actions it would not have questioned in members of a different sex.” 140 S.Ct. 1731, 1737 (2020). The Court ruled: “Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”

Justice Gorsuch’s opinion is based on the judicial construct of “textualism” and the plain meaning of “because of,” which means the employer would not have fired the employee “but for” the employee’s sex and that an employer cannot avoid liability just by claiming some other factor contributed to the decision to terminate the employee. The Court reasoned “it is impossible to discriminate against a person from being homosexual or transgender without discriminating against that individual based on sex.” 140 S. Ct. 1731, 1742 (2020). Justice Gorsuch explains this position with the straightforward example of an employer who fires a transgender person who was identified as a male at birth but who now identifies as a female. If the employer retains an otherwise identical employee who was identified as female at birth, the employer intentionally penalizes a person identified as male at birth for traits or actions that it tolerates in an employee identified as female at birth, which is an “unmistakable and impermissible role in the discharge decision.” Further, the Court pointed out that the Bostock ruling is consistent with prior U.S. Supreme Court decisions which held that Title VII prohibits sexual harassment and motherhood discrimination, two acts which are conceptually distinct from sex discrimination, yet still derive from “because of sex” decisions.

No one is naïve enough to believe that Bostock will stop anti-LGBTQ discrimination dead in its tracks, but this decision is a tool of change. All employers should take steps to educate employees to address the direct prejudice and implicit bias that exist in our communities and at our workplaces. Bigotry is running rampant right now and we need more than a policy update, which is itself critical to ensure that our employees do not face discrimination at work. Effective training can help employees identify and process their own biases and understand that they must engage respectfully at all times at work or face discipline.

New policies and practices should include: 1) nondiscrimination policies that specifically identify sexual orientation and gender identity; 2) personal appearance policies/dress codes which focus on the need for professional attire and not gender-specific attire to the extent possible — employees must be allowed to wear the clothing that comports with their gender identity; 3) best practices for addressing an employee’s choice of pronoun and any change in pronoun choice; 4) develop best practices for managing an employee’s gender transition at work to help support employees and to set clear expectations to minimize the risk of bias or mistreatment; 5) develop best practices for restroom and locker room access to ensure that there are no issues with employees accessing the restroom which corresponds to their gender identity.

Smart employers will do more than just forbid discrimination; they will take all steps to create an inclusive and safe workplace to keep the best talent.

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