Douglas J. Melton
New Employment Legislation for 2019
On June 15, 2020, in Bostock v. Clayton Cty., Georgia1, the Supreme Court held in a 6-to-3 decision that Title VII of the Civil Rights Act of 1964 prohibits employment discrimination against LGBT individuals. The Court explained that “[a]n 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.” The majority opinion was written by Justice Neil Gorsuch and joined by Chief Justice John Roberts and Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan. Justice Samuel Alito filed a dissent, joined by Justice Clarence Thomas. Justice Brett Kavanaugh also filed a dissenting opinion.
The Bostock case actually stemmed from three separate cases in which longtime employees were fired by their employers after revealing their sexual orientation or transgender status.
Gerald Bostock worked for Clayton County, Georgia, as a child welfare advocate for over a decade and the county had been recognized for numerous national awards under his leadership. Bostock began participating in a gay recreational softball league. Shortly after he joined the league, he was fired for conduct “unbecoming” of a county employee.
Donald Zarda worked as a skydiving instructor at Altitude Express in New York for several years. Zarda mentioned that he was gay and, days later, was fired.
Aimee Stephens worked at R.G. & G.R. Harris Funeral Homes in Garden City, Michigan. When she got the job, Stephens presented as a male. During her tenure at the funeral home, clinicians diagnosed her with gender dysphoria and recommended she begin living as a woman. In her sixth year with the company, Stephens wrote a letter to her employer explaining that she planned to “live and work full-time as a woman” after she returned from an upcoming vacation. The funeral home fired her, stating “this is not going to work out.”
Each brought lawsuits against their former employers alleging violations of Title VII, to varying degrees of success. Bostock’s case was dismissed by the Eleventh Circuit, which held Title VII did not prohibit employers from firing employees based on sexual orientation. In contrast, in Zarda’s and Stephens’ cases the Second and Sixth Circuits both held that Title VII did bar employer discrimination on the basis of sexual orientation and transgender status. The Supreme Court granted certiorari to resolve the split of authority.
The question before the Court was whether the term “sex” in Title VII encompasses gender identity and sexual orientation. The majority opinion acknowledged that while sexual orientation and gender identity are “distinct concepts from sex,” “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”
The opinion began with a discussion of the “the ordinary public meaning” of the term “sex” which people understand to denote either a male or female. Under the plain terms of Title VII, an employer violates Title VII “when it intentionally fires an individual employee based in part on sex,” even if “other factors besides the plaintiff’s sex contributed to the decision” and even if “the employer treated women as a group the same when compared to men as a group.” The dispositive question in determining a Title VII violation was whether “changing the employee’s sex would have yielded a different choice by the employer.”
The employers raised a series of unsuccessful arguments. First, the employers argued Congress has considered, but failed to pass, bills that would clarify that Title VII’s protections apply to LGBTQ+ employees. The Court refused to base its interpretation of Title VII on speculation as to why Congress declined to adopt legislation. Second, the employers argued that most people in 1964 would not have expected Title VII to apply to LGBT employees. This argument was stricken as “exactly the sort of reasoning this Court has long rejected.”
The majority opinion left open a number of unresolved issues for future cases. Justice Gorsuch limited the holding to the narrow issue of whether an “employer who fires an individual merely for being gay or transgender defies the law.” Whether sex-segregated bathrooms or locker rooms or dress codes might violate Title VII were deemed “questions for future cases.” The Court also declined to resolve tensions between Title VII and federal laws and constitutional provisions protecting religious freedom. However, the Court noted that potential arguments for religious employers might exist under the religious exemptions in Title VII and in the Religious Freedom Restoration Act.
Justice Alito’s dissent was joined by Justice Thomas. The dissent chided the majority for ignoring the text of the statute and essentially “creating legislation” by updating Title VII to better reflect society’s current values.” The dissent argued the majority opinion ignores the “well-established” definition of “sex” as “biological sex.” The real question before the court, Alito stressed, was “not whether discrimination because of sexual orientation or gender identity should be outlawed. The question was whether Congress did that in 1964. It indisputably did not.” Alito warned the majority’s ruling will have far reaching consequences on freedom of religion, freedom of speech, and personal privacy and safety.
Justice Kavanaugh filed his own dissenting opinion focusing on what he perceived as judicial overreach by the majority and asserting that the Court usurped Congress’ legislative role. In Kavanaugh’s view, the ordinary meaning of the phrase “discriminate because of sex” does not extend to discrimination based on sexual orientation.
What Does This Case Mean for California Employers?
While a landmark decision for federal law, Bostock does not impact California employment laws. California already provides significant protections for both the sexual orientation and gender identity2/expression of LGBTQ+ employees. The Fair Employment and Housing Act (FEHA) prohibits discrimination and harassment on the basis of sexual orientation, gender, gender identity, and gender expression. It is an unlawful employment practice for an employer to fail or refuse to hire, discharge from employment, or discriminate in compensation, terms, conditions, or privileges of employment based on one of these protected classifications.
In 2016, the Department of Fair Employment and Housing (DFEH) issued guidance to employers concerning the rights of transgender individuals. DFEH’s guidance made clear that employers may not discriminate against someone because they identify as transgender or gender non-conforming. This includes the perception that someone is transgender or gender non-conforming. A person does not need to complete any particular step in a gender transition in order to be protected by the law.
Here are three tips for employers to ensure legal compliance with DFEH’s updated regulations:
Interviews: During interviews, employers should not ask questions designed to detect a person’s gender identity, including asking about their marital status, spouse’s name, or relation of household members to one another. Employers should not ask questions about a person’s body or whether they plan to have surgery.
Dress Code: Employers who require a dress code must enforce it in a non-discriminatory manner. This means that, unless an employer can demonstrate business necessity, each employee must be allowed to dress in accordance with their gender identity and gender expression. Transgender or gender non-conforming employees may not be held to any different standard of dress or grooming than any other employee.
Restrooms: Employers must ensure that employees have access to safe and appropriate restroom and locker room facilities. This includes the right to use a restroom or locker room that corresponds to the employee’s gender identity, regardless of the employee’s assigned sex at birth. In addition, where possible, an employer should provide an easily accessible unisex single stall bathroom for use by any employee who desires increased privacy, regardless of the underlying reason. Use of a unisex single stall restroom should always be a matter of choice. No employee should be forced to use one either as a matter of policy or due to harassment in a gender-appropriate facility. Unless exempted by other provisions of state law, all single-user toilet facilities in any business establishment, place of public accommodation, or state or local government agency must be identified as all-gender toilet facilities.