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June 18, 2020 | EmploymentFrom the blog

Gay and Transgender Rights Protected from Employment Discrimination

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Andrew Ramstad

Associate Attorney

In New York City, New York State and 21 other states, an individual’s sexual orientation and gender identity is protected from employment discrimination based on state and local law.  Under federal law, however, LGBTQ individuals’ protection from employment discrimination depended on what federal circuit they lived in.

On Monday, the Supreme Court announced in a 6-3 decision that federal employment protection of LGBTQ individuals now extends nationwide.  Specifically, the Court held that Title VII protects persons from discrimination based on sexual orientation and gender identity.  

In a landmark decision, the Court ruled that federal law prohibits gay and transgender employment discrimination.  Discrimination on the basis of sex is prohibited under Title VII of the Civil Rights Act of 1964, but prior to this decision, that language had not been specifically extended to LGBTQ individuals. 

The decision follows from two sets of cases where employees were fired solely on the basis of their sexual orientation or gender identity—one for being gay and the other for being transgender.  In both instances, the employers admitted to firing the employees on the basis of their sexual orientation or gender identity, but they argued that such conduct was not prohibited under the sex-based discrimination umbrella of Title VII.  The Court held otherwise. While the discrimination may not have occurred solely on the basis of sex, it was based partly on sex, as sex is a necessary component of a gay or transgender identity.  Even if not labeled as sex discrimination specifically, the sex of these employees was a factor in the termination of their employment. 

The Court likened this form of partially sex-based employment discrimination to other cases of employment discrimination based on motherhood and life expectancy.  While not solely based on sex, both factors discriminate in part on the basis of sex because being female is a necessary component of being a mother, and women on average have longer life expectancies.  Similarly, an individual’s sex is a necessary component of being gay or transgender.  The employers in both cases knew that their employees were either attracted to individuals of their same sex or were presenting as the opposite sex to that which they were assigned at birth.

Additionally, the Court held that if an employer treats male and female employees identically due to their sexual orientation, this does not negate the discrimination.  For example, if an employer would fire both a transgender male and a transgender female, these are still both instances of discrimination, even though both male and female employees are subject to identical treatment.

While 22 states had separately enacted their own laws prohibiting employment discrimination against LGBTQ employees prior to this decision, those state statutes protected less than half of the LGBTQ population in the United States.  After this decision, LGBTQ individuals in all 50 states will have federal protection from being fired simply for being gay or transgender.  This victory is a long-overdue step towards equality in the employment sector.

A copy of this historic decision titled, Bostock v. Clayton County, can be read here: https://www.supremecourt.gov/opinions/19pdf/17-1618_hfci.pdf

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Photo by Teddy Österblom on Unsplash

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