On June 15, 2020, the U.S. Supreme Court held that federal law protects workers from employment discrimination due to their sexual orientation or transgender status. Specifically, in the decision Bostock v. Clayton County, Georgia, the Court found that Title VII of the Civil Rights Act of 1964 (or “Title VII”) also prohibits LGBTQ discrimination in the workplace, reasoning that it is a form of unlawful discrimination based on “sex.”
If you are an LGBTQ employee working in New Jersey, please note that the state New Jersey Law Against Discrimination (the “LAD”) already prohibits your employer from discriminating against you because of your sexual orientation, gender identity, or gender expression. However, the Bostock decision is important in that it expands the legal arsenal available to all those who choose to sue for LGBTQ discrimination in employment. Even more importantly, the Bostock decision offers protection against discrimination to those employees working in the 26 states that, as of this date, have not passed laws prohibiting LGBTQ discrimination.
A Quick Look At The Court’s Reasoning
The Bostock ruling interpreted Title VII, which makes it illegal for employers to discriminate “because of [an employee’s] race, color, religion, sex, or national origin.” The question before the Court was whether this language also prohibited discrimination based on sexual orientation or gender identity/expression, despite not explicitly stating so.
In his majority opinion, Justice Neil Gorsuch answered in the affirmative, reasoning that “if changing the [LGBTQ] employee’s sex would have yielded a different choice by the employer,” then the employer has discriminated “because of sex” within the meaning of Title VII. To illustrate, Justice Gorsuch offered the following examples:
- An employer who fires a male employee for being sexually attracted to men, but who doesn’t fire a similarly-situated female employee for being sexually attracted to men, is firing the male employee on the basis of his sex.
- An employer who fires a transgender female who was identified as male at birth, but who doesn’t fire a similarly-situated female who has always identified as female since birth, is firing the transgender female on the basis of her sex.
“Because of” Means Sex Cannot Play Any Role In An Adverse Employment Action
Title VII cases traditionally rely upon a “but for” test of causation. Here, the plaintiffs contended that “but for” their sex, they would not have suffered an adverse employment action. Justice Gorsuch clarified that employers cannot skirt Title VII by pointing out other, non-discriminatory reasons for their conduct: “When it comes to Title VII, the adoption of the traditional but-for causation standard means 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 but-for cause of that decision, that is enough to trigger the law.” In other words, adverse employment actions cannot be motivated in any way by sex, race, or any of the other protected categories under Title VII.
The Bostock case promises to greatly expand employment protections for LGBTQ workers. If you believe you have been the subject of unlawful workplace discrimination, call our offices today for a free consultation.