Supreme Court Outlaws Discrimination Against LGBT Employees

The United State Supreme Court ruled today in Bostock v. Clayton County that employers may be sued for sex discrimination by LGBT employees under Title VII of the Civil Rights Act of 1964. This opinion resolves a long-time disagreement between the various federal circuit courts and unwieldy patchwork of laws that had protected LGBT employees in some states but not others, and Texas cities like Austin, Dallas and Houston, but not Amarillo.

The Court combined three cases, one in which a male county employee was fired for conduct “unbecoming” a public employee when he joined a gay softball league, one in which a private employer fired an employee just days after he mentioned he was gay, and one where a funeral home fired an employee who presented as male when hired, but later stated that she was going to live, dress and work as a female going forward.

After reviewing each of these job terminations, the Court decided 6-3 in an opinion written by Trump-appointee Justice Neil Gorsuch that an employer who fires an individual based in part on being gay or transgender (and by natural extension, bisexual or lesbian) violates Title VII’s prohibition on discrimination on the basis of sex. “An employer who fires an individual merely for being gay or transgender defies the law”, Gorsuch wrote.

The Court pointed out several important rules for employers to know (these apply to any discriminatory job decision, whether it is based on race, age, national origin, disability, religion, etc.):

  • The employee’s sex, including sexual orientation or gender identity, need not be the sole or primary cause of the employer’s adverse action. An employer violates Title VII when it intentionally fires an individual based in part on sex. It makes no difference if other factors besides the plaintiff’s sex contributed to the decision.
  • It is irrelevant what an employer might call its discriminatory practice, how others might label it, or what else might motivate it.
  • An employer cannot escape liability by demonstrating that it treats males and female homosexual or transgender employees comparably.

If you as an employer fire a gay or transgender employee now, the terminated employee has to show a jury that you intentionally fired the employee in part based on that employee’s sexual orientation or gender identity. This is the same Title VII rule that applies when you fire a woman or a person of color.

And this protection of LGBT employees does not just apply to discriminatory terminations. Although firings were the basis of these three specific cases, the Court’s opinion reminds us that Title VII also imposes liability on employers when they fail or refuse to hire, discharge or otherwise discriminate against someone (in compensation, evaluations, promotions, etc.) because of a protected characteristic like sex.

In Texas, this adds another protected class to the list of those employees who may sue you for discrimination if you have 15 or more employees. If you have been reading my posts for very long, you know that I’ve advised you repeatedly about these protected classes over the years. But just to quickly remind you of the protected classes, the list now includes race, religion, national origin, age, sex, pregnancy, citizenship, disability, genetic information, sexual orientation, gender identity and veteran’s status.

Today’s decision does not actually add additional burdens on to you as an employer. Just as you always have, you need to have job-related reasons for any termination of employment, and you need to document those reasons well. Don’t rely solely on employment at will to protect you.

If you have more than 15 employees and I updated your employee handbook anytime in the recent past, your equal employment opportunity policy already says that your company doesn’t discriminate on the basis of sexual orientation or gender identity. But today would be a good day just to double-check that your EEO policy reads correctly.

If you are concerned with complying with today’s decision, here are half of my ten commandments to prevent discrimination cases. I have been preaching these for 30 years and they do not change even when the law is finally interpreted to protect another group of employees nationwide:

  1. Establish written standards and policies to let your employees know what is expected of them. Apply those standards and policies equally and consistently.
  2. Think before you speak. Off-color jokes and bigoted comments are unacceptable in the workplace. Be professional and kind in all of your employee interactions and management decisions and you probably will never see the inside of a courtroom.
  3. Build a written record on every employee’s performance. Your employees’ personnel files do not have to be pretty, just thick. Quickly note every good and bad experience you have with each employee. That way you will have balanced written evidence if you have to make an adverse decision about an employee based on poor performance.
  4. Use performance evaluations to have a formalized record, but only if you can resist grading on a curve and if you really will focus on the employee’s actual job performance. An evaluation that is falsely inflated to avoid hurting an employee’s feelings will only hurt your case when it is shown to the jury in that employee’s discrimination suit. The jury will also skeptically view an evaluation that is trumped up with minor complaints to support firing an employee for reasons other than performance.
  5. The Golden Rule still applies. Treat your employees fairly and respectfully, as you would like to be treated. Care about them as individuals, listen to them, and do the hard work of providing a good workplace environment for them. If you do this, you will develop loyal, long-term employees who are less likely to sue and more likely to perform their jobs well.

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