In one of the most significant Supreme Court cases for Florida employers in many years, the U.S. Supreme Court held by a 6-3 margin that Title VII of the Civil Rights Act of 1964 (commonly known as “Title VII”) protects gay and transgender individuals from discrimination in the workplace. In the anxiously anticipated decision, which is a consolidation of three cases, the Court held in Bostock v. Clayton County, Georgia, that Title VII’s prohibition against discrimination on the basis of sex includes discrimination because of an individual’s sexual orientation and gender identity. While the decision only addresses traditional claims of discrimination (plaintiffs were all fired from their jobs), employers should expect that the ruling will extend to claims of harassment as well. If you are a Florida employer, this decision likely means that you need to update, review, and discuss your employment policies with your employees.
New Protections
Until recently, the lower courts that had ruled on the issue routinely held that Title VII’s protections did not extend to discrimination against individuals who had adverse actions taken against them merely because they were gay or transgender. In fact, one of the consolidated cases came from the Eleventh Circuit, which had cited a long-standing lower court precedent in rejecting the claim of a gay male who was fired from his job in Georgia solely because his employer learned that he was gay. Florida is part of the Eleventh Circuit, and so gays were not protected under Title VII’s coverage in Florida until today.
The 6-3 ruling was written by Justice Neil Gorsuch, who is part of the conservative majority of the Court. He was joined by Chief Justice John Roberts, a fellow conservative, who voted with the four members of the liberal wing of the Court. Justice Gorsuch, who replaced Justice Scalia on the Court, is known for his literal textual reading of statutes, and it makes sense why Chief Justice Roberts assigned him to write the opinion (the Chief Justice gets to decide who writes the majority opinion when the Chief Justice is part of the majority).
Consequently, the decision reads somewhat differently than the Court’s 2015 decision in Obergefell v. Hodges, whereby it established marriage as a constitutional right that could not be withheld from someone because of sexual orientation. This decision is much more narrowly tailored, relying on a reading of the text of Title VII itself, as developed in prior Supreme Court decisions.
Addressing the employers’ arguments that Congress did not intend to protect gay or transgender employees when it passed Title VII in 1964, Justice Gorsuch observed,
Those who adopted the Civil Rights Act might not have anticipated their work would lead to this particular result. Likely, they weren’t thinking about many of the Act’s consequences that have become apparent over the years, including its prohibition against discrimination on the basis of motherhood or its ban on the sexual harassment of male employees. 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.”
The majority decision, using this textual reading of the statute, then proceeds to provide multiple examples of why the statute’s focus on individual discrimination (as opposed to group discrimination) on the basis of sex makes the need for the addition of the term “sexual orientation” to the statute superfluous. One example, in particular, stands out:
Imagine an employer who has a policy of firing any employee known to be homosexual. The employer hosts an office holiday party and invites employees to bring their spouses. A model employee arrives and introduces a manager to Susan, the employee’s wife. Will that employee be fired? If the policy works as the employer intends, the answer depends entirely on whether the model employee is a man or a woman. To be sure, that employer’s ultimate goal might be to discriminate on the basis of sexual orientation. But to achieve that purpose the employer must, along the way, intentionally treat an employee worse based in part on that individual’s sex.”
In a vigorous dissent, Justice Alito rejected Justice Gorsuch’s analysis and stated that he was misapplying textual reasoning, such that the decision was also jeopardizing religious freedoms.
Because the Court’s decision did not create a constitutional protection for gay or transgender individuals, technically Congress could amend Title VII to exclude sexual orientation or gender identity, or both. Nearly half the states (but not Florida) currently have laws that already prohibit discrimination on the basis of sexual orientation or gender identity, though, so it seems unlikely that Congress would act to reverse the Court’s decision any time soon. Further, because Title VII only covers private employers with 15 or more employees (there is no size limit for public employers), gay or transgender employees who work for small private employers in Florida remain unprotected from discrimination or harassment.
What should Florida employers do now in light of this decision?
Unless you were an employer located in a handful of local municipalities that already prohibited discrimination on the basis of sexual orientation or gender identity, until today you were immune from liability from gay or transgender employees’ discrimination or harassment claims.
While many employers have not waited for the law to catch up, and have adopted policies that prohibit discrimination or harassment on the basis of sexual orientation or gender identity, this decision requires most Florida employers to make sure their organization understands that they can now face legal liability under Title VII if an employee in the organization is subjected to discrimination or harassment because of the employee’s sexual orientation or gender identity. Harassment and diversity training, if it does not already include these subject areas, should now be expanded to specifically incorporate and discuss policies against discrimination and harassment against gay and transgender employees.
Please contact Henderson Franklin if you would like to confirm your policies comply with this new interpretation of Title VII, or if you would like our assistance in training programs to implement this new area of coverage. I may be reached at scott.atwood@henlaw.com or by phone at 239-344-1287.
[The decision is Bostock v. Clayton County, Georgia, No. 17-1618, a consolidated case with No. 17–1623, Altitude Express, Inc., et al. v. Zarda et al., as Co-Independent Executors of the Estate of Zarda (from the United States Court of Appeals for the Second Circuit), and No. 18– 107, R. G. & G. R. Harris Funeral Homes, Inc. v. Equal Employment Opportunity Commission et al. (from the United States Court of Appeals for the Sixth Circuit).]