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Title VII of the Civil Rights Act of 1964 Now Protects Homosexual and Transgender Employees From Workplace Discrimination



Title VII of the Civil Rights Act of 1964 (“Title VII”) protects individuals from discrimination based on race, color, religion, sex, and national origin. Congress drafted the language of Title VII broadly, with little to no exceptions. Since the enactment of Title VII, the judiciary has taken careful steps to interpret “on the basis of sex” in accordance with the original 1964 statutory language. On June 15, 2020, the United States Supreme Court (“U.S. Supreme Court”) settled a circuit split among the federal circuit courts on whether homosexual and transgender employees are guaranteed the protections of Title VII, “on the basis of sex.” Previously, some federal circuit courts held that Title VII’s “on the basis of sex” language included homosexual and transgender employees, while other circuits, including the Eleventh circuit, held that “on the basis of sex” did not include homosexual or transgender employees. In Bostock v. Clayton County, the U.S. Supreme Court ultimately held that the statutory language “on the basis of sex” does include homosexual and transgender employees. As such, homosexual and transgender employees are now guaranteed the workplace protections offered by Title VII.

How did the U.S. Supreme Court reach its ruling?

The U.S. Supreme Court started its analysis by examining the causation standard used in other Title VII cases. Title VII prohibits employers from taking certain actions “because of” an employee’s sex (also referred to as gender). Title VII’s “because of” sex test essentially asks whether an employee’s gender is a “but-for” cause for an employer’s adverse employment action, (i.e. termination, demotion, pay cut). This means that “but-for” the employee’s gender, would the employer have taken the same adverse employment action? The simplest way to determine this is to determine if the employer would have taken the same adverse employment action had the employee been the opposite gender. If the employer would have taken the same adverse action regardless of the employee’s gender, then sex is not the “but-for” cause, and the employer did not discriminate against the employee because of his or her sex. However, if changing the employee’s gender in the scenario does change the employer’s actions, (i.e. the employer would not have terminated the employee had he or she been the opposite gender), then the employer did discriminate against the employee because of his or her sex.

In the context of homosexual employees, the U.S. Supreme Court found that when an employer terminates a male on the sole basis that he is attracted to men, “the employer discriminates against him for traits or actions it tolerates in his female colleague.” In other words, switch the homosexual man’s gender to female in the termination situation and you will find that the employer would not have terminated the woman because there would not have been a homosexual employee involved. Therefore, the Court found that sex was the “but-for” cause in that termination situation. The same applies to transgender employees. When an employer would not have terminated a transgender male, who identifies as a woman, if he had biologically been a woman, sex is, in part, the basis for the employer’s action. In these situations, “the individual employee’s sex plays an unmistakable and impermissible role in the discharge decision.” The Court held “homosexuality and transgender status are inextricably bound up with sex . . . to discriminate on these grounds requires an employer to intentionally treat individual employees differently because of their sex.”

Notably, sex does not have to be the only “but-for” cause for the adverse employment action to subject an employer to liability. Just because an employer can point to another reason for an adverse employment action does not mean that sex was not a “but-for” cause. An employer can still be held liable for discrimination when there are multiple “but-for” causes for an adverse employment action. The employee need only establish that sex motivated the employer’s decision to take the adverse employment action(s). In Bostock v. Clayton County, the employers argued that they terminated the employees because of the employees’ “homosexual” or “transgender” status, not because they were male or female. The Court held that while that may be true, “to achieve that purpose the employer must, along the way, intentionally treat an employee worse based in part on that individual’s sex.” Even if the employer’s adverse employment action is attributed to something other than the employee’s sex, the employer may still be liable if sex partially motivated the employer. The Court held that employers cannot terminate an employee because he or she is homosexual or transgender without also terminating that employee on the basis of sex.

What are the implications of this new ruling?

Based on the U.S. Supreme Court’s ruling, employers can no longer “fail or refuse to hire or to discharge any individual, or otherwise discriminate against any individual with respect to his [or her] compensation, terms, conditions, or privileges of employment,” because of such individual’s status as a homosexual or transgender individual. This ruling provides new workplace protections for a class of employees who previously received none.

If you feel your rights under Title VII have been violated, or if you have any other questions regarding your employment rights, please contact the experienced Birmingham employment law attorneys at Michel | King. You can contact us either online or by calling us at (205) 319-9724. We are here to serve you

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