Professional Liability

Key Points:

• Treat complaints of discrimination based upon sexual orientation and gender identity as you would with any other claim for sex discrimination based upon Title VII.
• Employers should update and distribute all discrimination policies to include sexual orientation and gender identity as classes against whom discrimination will not be tolerated.
• Apply policies and procedures consistently and fairly.

Title VII of the Civil Rights Act of 1964 was enacted to prohibit discrimination in the workplace because of an individual’s race, color, religion, sex or national origin. In June of 2020, the Supreme Court of the United States announced a decision on an issue that has garnered much attention throughout the entire legal community and the country. In Bostock v. Clayton County, Georgia, et. al., the High Court found that sexual orientation and gender identity qualify for Title VII’s protection because any such discrimination is “because of” the individual’s sex. In the Court’s opinion, the terms “sex,” “because of,” “discriminate” and “individual,” used in the statute, were examined in depth. The Court noted that when considering statutes that had unambiguous and clear terms, there was no reason to look any further than what the statute actually stated. Neither Congress’s intent nor the employer’s motivation or label for the discriminatory practice was relevant.

In Bostock, the Court consolidated three cases for decision on the same issue—two in which the employee was terminated due to his or her sexual orientation and one for the employee’s gender identity. The issue presented in these cases was “whether an employer can fire someone for being homosexual or transgender.” The Court held that the answer was clear. “An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”

Justice Gorsuch, writing for the majority, explained that it was impossible to discriminate against a person for being homosexual or transgender without discriminating against them because of his or her sex. Consider a situation in which an employer had two employees who were “materially identical” in all respects, both of whom were attracted to men, but one is a woman and one is a man. If the employer fires the male employee for no other reason than he is attracted to men, the employer discriminated against him because of his sex. Similarly, consider a circumstance in which an employer has a female employee and an employee who at birth was identified as a male, but now identifies as a female. If the employer fires the transgender employee, but retains the employee who identified as female at birth for no other reason than their gender traits at birth, the employer discriminated against the transgender employee because of her sex. The employee’s sex does not have to be the primary reason for the adverse employment action in order for the employer to be liable under Title VII. The Court held that, even if there were other factors involved in the decision to terminate, if one factor was the employee’s sex, the employer would be liable under Title VII.

What does this opinion mean for employers? An employer must treat a complaint for discrimination based upon sexual orientation or gender identity exactly the same as it would treat a complaint of sex discrimination, or any other class that is protected by Title VII. Even if the employer does not have the requisite number of employees to fall under Title VII, it is a best practice to employ the same procedures and policies as if it did fall under Title VII. Some state laws may already specify that discrimination based upon sexual orientation or gender identity is unlawful. If states do not already have such laws, it is very likely that they will follow the Supreme Court’s lead in their own interpretation of liability for discrimination complaints based upon sexual orientation and gender identity. Discriminatory actions include failure to hire, failure to promote, pervasive inappropriate comments or actions, denying such individual conditions and/or privileges of employment, and termination. Employers must perform an investigation when they receive complaints regarding harassment or discrimination that in any way could relate to the sex of the individual complaining of such behavior. As always, policies and procedures must be applied consistently and fairly among all employees.

Additionally, employers should update their employee manuals and any other documentation that explains anti-discrimination and anti-harassment policies to reflect that the employer will not tolerate harassment or discrimination based upon sexual orientation or gender identity. The policies should also explain how to report complaints of discrimination or harassment of any type, including those based upon sexual orientation and gender identity. If the employer requires employees to sign an acknowledgement of anti-discrimination policies, those acknowledgments should be updated to include sexual orientation and gender identity.

As with all employment-relations activities, it is of the upmost importance to apply policies consistently and fairly, promulgate written anti-discrimination and harassment policies, and ensure that all employees understand the policies.

*Danielle is a shareholder in the Pittsburgh, Pennsylvania office and can be reached at (412) 803-1185 or dmvugrinovich@mdwcg.com.

_{Defense Digest, Vol. 27, No. 1, January 2021 is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2021 Marshall Dennehey Warner Coleman & Goggin. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact tamontemuro@mdwcg.com.}