Recognize employee protections based on sexual orientation and transgender status

Celebrating our achievements togetherBased on the facts in Bostock v. Clayton County, Georgia, the U.S. Supreme Court has ruled that Title VII of the Civil Rights Act of 1964 protects gay and transgender workers from workplace discrimination. The 6-3 decision, issued on June 15, 2020, held that an employer who fires an individual merely because that individual is gay or transgender violates Title VII because “[s]ex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”

The court decided that a defendant cannot avoid liability just by citing some other factor that contributed to its challenged employment decision. So long as the plaintiff’s sex was one cause of that decision, that is enough to trigger the law. The ruling stated:

If the employer intentionally relies in part on an individual employee’s sex when deciding to discharge the employee—put differently, if changing the employee’s sex would have yielded a different choice by the employer—a statutory violation has occurred.

The Court concluded that discrimination on the basis of homosexuality or transgender status requires an employer to intentionally treat individual employees differently because of their sex. Therefore, an employer who intentionally penalizes an employee for being homosexual or transgender also violates Title VII because sex is necessarily a “but-for” cause when an employer discriminates against homosexual or transgender employees.

Before the ruling based on Title VII, transgender employees had some levels of protection against being fired because of their status as a transgender person. These protections have been based on state and local laws, recent rulings from federal courts, and Equal Employment Opportunity Commission (EEOC) decisions that made it illegal to discriminate “because of sex.” The Supreme Court ruling is important because almost all public and private-sector employees and job applicants (at companies of 15 or more employees) are covered under Title VII.

While it may seem obvious that firing someone from their job “because of [his or her] sex” would include discrimination against transgender people, who are often fired when they transition from one sex to another or when they are outed for having transitioned previously, courts and administrative agencies that deal with employment law have historically not been very sympathetic to transgender people, having traditionally held that they were excluded from coverage under Title VII. Now that has changed completely.

The change has been building for the past decade or more. In 2012, there was a landmark EEOC decision in a case brought by the Transgender Law Center. In that case, the bipartisan EEOC—the federal agency in charge of enforcing employment discrimination laws—declared unanimously that anti-trans bias was sex discrimination under Title VII. There have also been federal cases that upheld transgender rights under Title VII. Now, the Supreme Court has reinforced that finding of discriminatory conduct.

Firms subject to Title VII or unaware of the need to eliminate discrimination have not incorporated equal treatment into their office policies or employee handbooks. Guidance can be found on the Victor School of Risk Management website in the article, “Protecting Transgender Employees in the Workplace” (access limited to current Victor policyholders and brokers).

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