Bostock v. Clayton County, Georgia (Decided June 15, 2020)

The Statue of Justice - lady justice or Iustitia / Justitia the Roman goddess of Justice

The Statue of Justice - lady justice or Iustitia / Justitia the Roman goddess of Justice
{6 minutes to read}  Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating against an individual “because of such individual’s … sex.” 42 U.S.C. § 2000e-2(a)(1). In a landmark decision, the Supreme Court held in Bostock v. Clayton County that this provision prohibits an employer from firing an employee for being gay or transgender. 

Background 

Bostock is the consolidation of three cases from different circuits.

1. In Altitude Express, Inc. v. Zarda, the plaintiff mentioned that he was gay to his employer. A few days later, his employer fired him. The Second Circuit held that Title VII prohibited an employer from firing an employee because he is gay.

2. In Bostock v. Clayton County, Georgia, the employer fired the plaintiff soon after he joined a gay recreational softball league. The Eleventh Circuit held that the plaintiff had no claim for sexual orientation discrimination under Title VII.

3. In R.G. & G.R. Harris Funeral Homes, Inc. v. EEOC, the employer fired the plaintiff, who identified as male at birth, shortly after she revealed that she was transgender and planned to “live and work full-time as a woman.” The Sixth Circuit held that she could bring a Title VII claim. 

The employers in these cases conceded that they intentionally fired the plaintiffs for being gay or transgender but argued that was permissible under Title VII. The Supreme Court granted certiorari to resolve the circuit split on this issue.

The Court used textual analysis to reach its holding in favor of the plaintiffs. 

The Court assumed that “sex” refers to biological distinctions between male and female. The Court also noted that “because of” incorporates a “but-for” causation standard. That is, Title VII is triggered if an employment outcome would not have occurred but for the employee’s sex. There may be more than one “but-for” cause of an employer’s action, the Court emphasized. 
Next, the court turned to the term “discriminate.” This means to “treat an individual worse than others who are similarly situated.” In Title VII disparate treatment cases, the plaintiff must show that the employer intentionally discriminated against her. Put together, Title VII prohibits an employer from intentionally treating a person worse in part because of that person’s sex. Thus, an employer has violated Title VII if it fires an employee for conduct or traits that the employer “would tolerate in an individual of another sex.” 
Applying that rule here, the Court held that Title VII’s “because of sex” provision protects homosexual and transgender individuals. “It is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex,” the Court held. 
For example: 

Consider two employees, one male, and one female, who are both attracted to men. If the employer fires the male employee because he is attracted to men, the employer has discriminated against the male employee because of his sex. The employer has intentionally treated him less favorably because of a trait — attraction to men — that the employer tolerates in the female employee. 

The same result follows in the transgender context: 

Consider an employer who fires a transgender employee who identified as male at birth but now identifies as female. If the employer does not fire an otherwise identical employee who identified as female at birth, the employer has discriminated against the transgender employee based on sex. The employer has intentionally penalized the transgender employee for conduct or traits — identifying as female — that the employer tolerates in the employee who identified as female at birth. 

In sum, “homosexuality and transgender status are inextricably bound up with sex,” and are thus protected under Title VII. 

It is immaterial that the Title VII drafters may not have expected the law to protect gay or transgender individuals, the Court held. 

Among other things, the employers argued that few people in 1964 would have anticipated that the law would protect homosexual or transgender individuals. The Court rejected this argument. First, the statute’s text is unambiguous. As described above, Title VII prohibits sex discrimination, and it is impossible to discriminate based on homosexuality or transgender status without discriminating based on sex. Thus, there is no need to speculate about what people may have expected the law to cover in 1964. 
Furthermore, the Court noted that it is not unusual for a statute to apply in situations unanticipated by Congress. For example, in Oncale v. Sundowner Offshore Services, Inc., the Court recognized that Title VII prohibits same-sex harassment, even though this was not the “principal evil” that Title VII sought to redress. 
Title VII’s application to new situations “does not demonstrate ambiguity; instead, it simply demonstrates breadth,” the Court held. 
If you believe that you have been discriminated against because of your sex, sexual orientation, sexual identity, or transgender status, you may wish to consult with the attorneys at Valli Kane & Vagnini LLP

James A. Vagnini
Partner
email: jvagnini@vkvlawyers.com
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Employment Discrimination-Know Your Rights

Discrimination in the workplace may be difficult to define but when it occurs, you should be aware and ready to take action. Under no circumstance is employment discrimination okay. It is important to know what qualifies as unfair and what factors you should consider before filing a lawsuit against an employer. Understanding employment discrimination in the workplace is vital when it comes to knowing what you must do if it ever happens to you.
So What Exactly is Employment Discrimination?
Employment discrimination occurs when a job seeker or an employee is treated unfavorably or unfairly because of his/her race, skin color, national origin, sex, age, disability, religion, genetic information etc. Workplace discrimination also extends beyond hiring and firing, for example, suggesting preferred candidates in a job ad, denying certain employees benefits or compensation, and discrimination while issuing promotions and lay-offs. There are many more different forms of employment discrimination and laws to protect employees. Listed below are some of the most common cases:
Racial Discrimination – Racial Discrimination takes place when a potential employee, employee or a group of employees are treated differently or unfairly based on their race or because of characteristics associated with race including facial features, hair, or color of their skin. Title VII of the Civil Rights Act of 1964, prohibits discrimination based on race as well as color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information.
Age Discrimination – Age Discrimination comes about when an employee is treated in an unfair manner because of their age, for example, being treated poorly because you are ‘too old’. The Age Discrimination Employment Act (ADEA) protects employees who are 40 years old and older. In addition, under the NYHRL, Section 3-a, it states that it is unlawful for any employer to refuse employment or compensation to any person 18 years old and older because of their age.
Gender, Sexual Orientation, and Hostile Workplace Discrimination

  • Equal Pay-Gender discrimination includes sexual discrimination and/or sex-based discrimination. This occurs when any employer treats an employee in an unfair way or inequitable manner based merely on gender. This includes equal pay for men and women which is federally protected under the Equal Pay Act of 1963.
  • Sexual Orientation-Sexual Orientation discrimination also falls under this category when being homosexual, heterosexual, bisexual or trans gendered impacts the way you are treated in the workplace or during the recruiting process. This kind of discrimination is protected under the Civil Rights Act and would be further be protected in a bill that is still awaiting passage by congress called the Employment Non-Discrimination Act (ENDA).
  • Sex/Hostile Work Environment– Also protected under the Civil Rights Act, Sex/Hostile Work Environment is discrimination based in a sexual hostile environment. The “hostile environment” law also applies to harassment on the bases of race, color, national origin, religion, age, and disability.

National Origin & Religion Discrimination – Our country is widely mixed with people from different parts around the globe. National Origin discrimination occurs when an employee is ignored and/or treated poorly because of his or her accent, nationality, or ethnicity. Companies are required to fairly accommodate an employee’s religious and cultural beliefs as long as they don’t negatively interfere with the workplace environment. This act of discrimination is protected under Title VII of the Civil Rights Act.
Disability Discrimination- The Disability Discrimination Act focuses on the specific needs of the blind, partially blind, physically or mentally handicapped or people with disabilities. Disability is defined by the Americans with Disabilities Act of 1990 (ADA) as a physical or mental impairment that considerably limits a major life activity. Discrimination includes denying employment opportunities to people who are disabled but qualify for the position or not accommodating the known physical/mental limitations of disabled employees
Pregnancy Discrimination-There are laws that protect pregnant women and people with disabilities under the Civil Rights Act and the Pregnancy Discrimination Act. Pregnancy, childbirth, and related medical conditions must be treated in the same way as other temporary illnesses or conditions. Additional rights are available to women and others under the Family and Medical Leave Act (FMLA), which is enforced by the U.S. Department of Labor.
If you feel you may be a victim of employment discrimination, let us help you protect your rights. Call the Law Offices of Valli, Kane & Vagnini today for a free consultation.