“Today, we must decide whether an employer can fire someone simply for being homosexual or transgender. The answer is clear. 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.”
The U.S. Supreme Court handed down a landmark decision today in gay and transgender rights cases that were argued in October 2019, at the beginning of the Court’s current term: Bostock v. Clayton County, Ga., No. 17-1618, and Altitude Express Inc. v. Zarda, No. 17-1623, and R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission, No. 18-107.
Title VII of the 1964 Civil Rights Act is a critical antidiscrimination law protecting employees, and today the Supreme Court extended the law’s protection against being disciplined, fired, or denied a job opportunity to gay, lesbian, and transgender employees.
Justice Neil Gorsuch wrote the majority opinion, ultimately relying on previously accepted and adopted arguments that the Civil Rights Act of 1964’s prohibition on sex discrimination in employment also reasonably banned employment discrimination based on sexual orientation or gender identity. Justice Gorsuch, considered an ardent “textualist,” acknowledged that Congress in 1964 may not have necessarily envisioned protecting LBGTQ rights when they passed Title VII, “But the limits of the drafters’ imagination supply no reason to ignore the law’s demands,” when “the express terms of a statute give us one answer and extratextual considerations suggest another, it’s no contest. Only the written word is the law, and all persons are entitled to its benefit.”
Three Justices dissented: Alito, Thomas, and Kavanaugh, with Justice Alito delivering the fieriest critique of his conservative colleague. Justice Alito took aim at Justice Gorsuch, saying, “There is only one word for what the Court has done today: legislation.” Justice Alito went on to describe the majority’s decision, explaining, “A more brazen abuse of our authority to interpret statutes is hard to recall. The Court tries to convince readers that it is merely enforcing the terms of the statute, but that is preposterous.”
How Big Is the Impact?
The decision will have an enormous impact, as it affects the rights of an estimated 8.1 million LGBTQ workers. This is especially true as many states and cities across the country do not have laws protecting LBGTQ employees. There are an estimated 11.3 million LGBTQ people currently residing in the U.S., according to the Williams Institute at the UCLA law school.
What Should Employers Do?
Employers should immediately revisit their employee handbooks and guidelines to ensure all equal opportunity provisions, non-discrimination, and non-harassment policies are up to date and include LBGTQ. Employers should also consider delivering updated training to managers and employees, now that LBGTQ is a protected class.
The Supreme Court considered two sets of cases. The first set, Bostock v. Clayton County, Ga., No. 17-1618, and Altitude Express Inc. v. Zarda, No. 17-1623, dealt with gay men who said they were fired because of their sexual orientation.
The first case was filed by Gerald Bostock, a gay man who was fired from a government program that helped neglected and abused children in Clayton County, Ga., just south of Atlanta, after his employer learned that Mr. Bostock joined a gay softball league.
The second was brought by a skydiving instructor, Donald Zarda, who also said he was fired because he was gay. Mr. Zarda was fired after a female customer complained that while preparing for a tandem dive with Mr. Zarda, she raised concerns about being strapped to Mr. Zarda for the skydive. In an effort to put her at ease, Mr. Zarda joked that he was “100 percent gay.”
The second set, a case on transgender rights is R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission, No. 18-107, was brought by a transgender woman, Aimee Stephens, who said her employer fired her when she announced to her coworkers that she would no longer dress as a man at work and would express her true gender identity at work. Ms. Stephens wrote a heartfelt email to her colleagues, explaining, “What I must tell you is very difficult for me and is taking all the courage I can muster,” going to says, “I have felt imprisoned in a body that does not match my mind, and this has caused me great despair and loneliness.”
Despite colleagues describing Ms. Stephens able and compassionate during her six-year tenure at the funeral home, the owner, Mr. Thomas Rost, decided to terminate Ms. Stephens because “he was no longer going to represent himself as a man. He wanted to dress as a woman.”
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