Page 18 - BusinessWest July 6, 2020
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 Law
A Landmark Ruling
Law Bars Discrimination Based on Sexual Orientation, Gender Identity
By Amelia J. Holstrom, Esq. and Erica E. Flores, Esq.
Businesses in Massachusetts have to comply with both state and federal anti- discrimination laws that prohibit dis-
crimination in employment based on what are referred to as protected characteristics. Some examples that people commonly think of
are sex, age, and religion, but there are many more.
Massachusetts’ anti-discrimination laws have prohibited employment discrimination on the basis of sexual orientation since 1990 and gen- der identity and expression since 2012. However, many other states either don’t have employment- discrimination laws at all or don’t include sexual orientation or gender identity as protected char- acteristics under the laws they do have. So what about the federal law?
Title VII of the Civil Rights Acts of 1964 pro- hibits discrimination in employment based on
“In a landmark ruling, the Supreme Court held that Title VII of the Civil Rights Act of 1964 prohibits discrimination based on sexual orientation and gender identity.”
specified protected classes. That statute, how- ever, does not list sexual orientation or gender identity in its list of protected characteristics. Although Title VII prohibits discrimination on the basis of ‘sex,’ because it did not expressly list sexual orientation and gender identity as pro- tected classes, federal courts had been left to grapple with whether discrimination on the basis of either of those characteristics is prohibited as a form of sex discrimination under Title VII. That is, until the Supreme Court of the U.S. issued its ruling in Bostock v. Clayton County, Georgia on June 15, 2020.
In a landmark ruling, the Supreme Court held that Title VII of the Civil Rights Act of 1964 pro- hibits discrimination based on sexual orientation and gender identity. The court’s decision resolved three separate but similar cases pending before the Supreme Court: Bostock v. Clayton County, Georgia; Altitude Express Inc. v. Zarda; and R.G. & G.R. Harris Funeral Homes Inc. v. EEOC.
Each of the three cases began the same way: Gerald Bostock worked for Clayton County, Ga. and was terminated for conduct “unbecoming” of a county employee when he began to par- ticipate in a gay softball league. Donald Zarda worked as a skydiving instructor at Altitude Express in New York. After mentioning that he was gay, he was terminated just days later after several years of successful employment. Aimee
ERICA E. FLORES
AMELIA J. HOLSTROM
“An employer has two employees — one female and one male — both of whom are attracted to men. If the employer fires the male employee because he is attracted to men, the employer discriminates against him for traits or actions it
tolerates in his female colleague.”
it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.” The court went on to explain its reasoning using two examples:
• An employer has two employees — one female and one male — both of whom are attracted to men. If the employer fires the male employee because he is attracted to men, the employer discriminates against him for traits
or actions it tolerates in his female colleague. Accordingly, he was singled out based on his sex, and his sex is the reason for the discharge.
• An employer employs a transgender employ- ee who was identified as a male at birth but
who now identifies as a female. If the employer continued to employ someone who identified
as female at birth but terminated the individual who identified as male at birth, the employer intentionally penalizes a person identified as male at birth for traits or actions that it tolerates in an employee identified as female at birth.
The court agreed that sexual orientation and gender identity are, in fact, distinct concepts from sex. However, the court determined that “discrimination based on homosexuality or transgender status necessarily entails discrimina- tion based on sex; the first cannot happen with- out the second.”
With this landmark decision, every employer that is covered by Title VII anywhere in the coun- try will now be subject to the same prohibitions that have protected LGBTQ+ employees in Mas- sachusetts for the last eight years, and will be subject to civil penalties and civil liability under Title VII for discriminating against employees on the basis of their sexual orientation or gender identity. This includes every private employer and every state or local government agency that has 15 or more employees. u
Amelia J. Holstrom and Erica E. Flores are attorneys at the firm Skoler, Abbott & Presser, P.C., in Springfield; (413) 737-4753; [email protected] abbott.com; [email protected]
         Stephens worked at R.G. & G.R. Harris Funeral Homes in Garden City, Mich. When hired, Ste- phens presented as a male. After five years of employment, she informed her employer that, after she returned from an upcoming vacation, she planned to “live and work full-time as a woman.” She was fired before she even left.
Bostock, Zarda, and Stephens each filed a lawsuit against their employer alleging that
they were discriminated against on the basis of their sex in violation of Title VII. Bostock’s case was dismissed by the Eleventh Circuit Court of Appeals, which held that sexual-orientation dis- crimination is not a form of sex discrimination under Title VII. Zarda and Stephens’ cases had
a different outcome. The Second and Sixth Cir- cuit Courts of Appeals found that discrimination based on sexual orientation and gender identity, respectively, are prohibited under Title VII as forms of discrimination based on sex.
The Supreme Court of the U.S. agreed to review all three decisions to resolve the issue that had divided the lower courts: whether discrimi- nation on the basis of sexual orientation and/
or gender identity is prohibited under Title VII
as a form of discrimination based on sex. The Supreme Court answered in the affirmative.
In the 6-3 majority opinion, which was authored by Justice Neil Gorsuch, the court focused on the ordinary meaning of the language used by Congress in Title VII at the time the law was passed back in 1964. Specifically, Title VII states that it is “unlawful ... for an employer to fail or refuse to hire or to discharge any individu- al, or otherwise to discriminate against any indi- vidual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s ... sex.” The court noted
that, in 1964, ‘sex’ was defined as one’s “status as either male or female [as] determined by repro- ductive biology; that the statute uses the term ‘because of’ that status to define when an action is discriminatory; and that it focuses on discrimi- nation against an individual, not a group.
Based on this language, the court found that, under the plain meaning of Title VII, “an indi- vidual’s homosexuality or transgender status is not relevant to employment decisions ... because
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