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Biden Administration Unthreads Religious Liberty Needle of the Civil Rights Act

Biden Administration Unthreads Religious Liberty Needle of the Civil Rights Act

By Fran Slusarz

The day he took office, President Biden issued Executive Order 13988, on “Preventing and Combatting Discrimination on the basis of Gender Identity or Sexual Orientation.” The effect of this order was to undo seven months of hackneyed religious liberty arguments of the previous administration to justify transphobic and homophobic policies that circumvent the obvious application of the Supreme Court’s holding in Bostock v. Clayton County. In honor of Pride Month and Bostock’s first anniversary as law of the land, I present some thoughts on the intersection between the First Amendment’s free exercise clause and anti-discrimination legislation, as well as current attempts to curtail transgender rights.

But first, a few ground rules: This is not a peer-reviewed law journal article. It is an attempt to translate some complex legal issues into something a non-lawyer can read and think about. I have most definitely overlooked nuances, and I welcome thoughtful criticism. Further, I intend no disrespect to any religion, religious thought, or people of faith. I do, however, disrespect the use of one’s religious beliefs to limit the rights of others and my pet peeve, the ascribing of religious faith to intangible statutorily-created legal fictions like corporations.

Bostock: Discrimination Because of Sexual Orientation or Gender Identity IS Because of Sex

Bostock resolved a trio of employment discrimination cases, where the employees were fired when the employers found out the employees were homosexual or transgender. The Supreme Court acknowledged that discrimination based on a person’s sexual orientation or gender identity is included in prohibition against discrimination “because of … sex” in Title VII of the Civil Rights Act. The Court explained, “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.” The employer who discriminates on the basis of sexual orientation or gender identity necessarily considers the behavior or appearance of the employee in comparison to how the employer believes a person of the employee’s sex should behave or appear and, therefore, discriminates because of the employee’s sex. The decision was groundbreaking and led to predictable backlash in the name of religious freedom.

Free Exercise of Religion

From the ratification of the Bill of Rights in 1791 until recently, the words, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof,” was understood to mean we will not have an official religion in this country and individuals are free to worship as they choose. In recent years, a more interventionist interpretation has taken root; one that encompasses the freedom to impose one’s religion on others. Based on this aggressive interpretation of religious freedom, we have business organizations that experience reverence for that which is sacred and divine, government clerks who think they can establish a religion for the county even if the government can’t, and wedding cake bakers whose Christian faith prevents them from creating confections for same sex spouses even if the same scruples allow them to bake cakes celebrating non-Christian weddings of a man and a woman.

Civil Rights Act of 1964 Prohibits Some Discrimination

Title VII of Civil Rights Act of 1964 makes it unlawful for an employer “to fail or refuse to hire or discharge any individual, or otherwise discriminate against any individual with respect to his[/her/their] compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” Title VII of Civil Rights Act does not apply to “religious corporation[s], association[s], educational institution[s], or societ[ies] with respect to the employment of individuals of a particular religion.” This makes sense: Congress did not want a world in which I could sue a Jewish congregation for refusing to hire me, a non-Jew, as a religious education teacher. That would be silly and would infringe the congregants’ rights to worship as they choose.

The Former Guy’s Shot Across the Bow

On January 19, 2021, the day before Biden’s inauguration, the former acting head of the Civil Rights Division of the Justice Department, John Daukas, issued a spite memo declaring that Division should not extend the holding in Bostock to areas such as gender-based policies on bathrooms and sports teams. The memo states, “Unlike racial discrimination, the Supreme Court has never held that a religious employer’s decision not to hire homosexual or transgender persons ‘violates deeply and widely accepted views of elementary justice’ or that the government has a ‘compelling’ interest in the eradication of such conduct.”

Albeit true, I’m calling Balderdash! at Daukas’s lofty statement. First, the Civil Rights Act exempts “religious corporation[s], association[s], educational institution[s], or societ[ies]” from its prohibitions against employment discrimination. Churches can discriminate in its employment practices because of sex with abandon. (See Female Catholic Priests. Or, more to the point, don’t see them.) Second, Daukas intentionally misstates what the Supreme Court held in Bostock. The Supreme Court did not invent two more protected categories to Title VII; it explained that discrimination because of sex includes discrimination against homosexuals and transgender people. It is natural and expected, therefore, that “the Supreme Court has never held that … [failure to] hire homosexual or transgender persons ‘violates deeply and widely accepted views of elementary justice…’” because the Supreme Court decries discrimination because of sex.

Finally, Daukas’ use of the term “religious employer,” signals that he is preaching to the interventionist religious freedom choir. No one questions the right of a religious organization to discriminate. Daukas wants individual employers and their business corporations to be able to discriminate against people based on their sexual orientation and gender identity.

The Civil Rights Division rescinded Daukas’s insightless memo two days later, as inconsistent with Executive Order 13988.

Bostock and Title IX of the Education Amendments of 1972

Title IX of the Education Amendments of 1972 states, “[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” On March 26, 2021, the Civil Rights Division of the Justice Department issued a memorandum concerning the Application of Bostock v. Clayton County to Title IX of the Education Amendments of 1972, concluding that the textual analysis of “because of” sex in Bostock applies to Title IX’s “on the basis of sex.” The Department of Justice’s conclusion that Title IX protects transgender students is backed by two post-Bostock appellate court decisions that reach the same conclusion. This is unlikely to cause widespread pushback from colleges and universities. The National Collegiate Athletics Association has supported transgender athletes for many years, publishing its handbook entitled, NCAA Inclusion of Transgender Student-Athletes in 2011.

In general, all colleges and universities that receive federal funding are covered by Title IX. Many high schools are covered as well. There is a religious exemption for private colleges and universities that are run or controlled by religious organizations. Fear-mongers can relax: Liberty University will not be forced to amend its Honor Code and admit openly homosexual or transgender students.

Bostock and Section 1557 of the Affordable Care Act

On May 10, 2021, the Department of Health and Human Services issued its Notification of Interpretation and Enforcement of Section 1557 of the Affordable Care Act and Title IX of the Education Amendments of 1972. The notification states that HHS will interpret and enforce Section 1557’s prohibition against discrimination on the basis of sex to include gender identity and sexual orientation.

HHS’s interpretation and enforcement are limited by challenges concerning religious freedom. In the Religious Sisters of Mercy v. Azar, decided on January 19, 2021, the Northern District of North Dakota held HHS’s interpretation of Section 1557, which could require Catholic plaintiffs to provide gender-affirming surgery and/or insurance coverage for gender-affirming surgery, violated the plaintiffs’ sincerely held religious beliefs. It is likely that Courts of Appeals reviewing the same issue would affirm the decision. This makes sense: Catholic doctrine on issues of sexuality, birth control, abortion, and the procreative purpose of humankind is well-known. If Congress cannot establish a state religion and cannot infringe individuals’ rights to worship as we choose, it cannot force religious organizations or individuals with sincerely-held religious beliefs, to perform or pay for medical procedures that violate religious doctrine.

Rant alert: I’m talking about religious organizations, not business corporations. Applying this rule to business corporations is crazy talk, Hobby Lobby notwithstanding. I cannot get behind the idea that a business corporation has sincerely-held religious beliefs. Corporations are legal fictions created by state law. The purpose of a business corporation is to create a legal “person” that can sue and be sued, to protect human owners from liability. As amusing as the Wall Street Catechism might be, business corporations do not ponder the meaning of life or their roles in it: the meanings of their lives are inscribed on certificates of incorporation and imbued in mission statements. Corporations are intentionally not the human owners. Regardless of what the human owners may sincerely believe, business corporations are no more capable of religious thought than a stapler. And at least the stapler is tangible. Rant over.

Backlash from the States

Bathroom Bills have been covered extensively and are based on the fantastic belief that allowing transwomen to TCOB in the women’s bathroom will invite hordes of pedophilic men to touch your daughters. It’s ‘nad-baiting, simple and plain.

Tennessee has added a new twist, by requiring businesses to post which biological sex is allowed in multi-person public bathrooms. It’s an exciting new way for trans-inclusive businesses to blackball themselves without ever having to answer if they are now, or ever have been, courteous to transgender patrons.

It’s almost impossible to keep current with the anti-transgender athletics laws passing state legislatures and signed gleefully into law by governors surrounded by assorted daughters and females (because, you know, as fathers of daughters, they know what it’s like). I was going to call out Mississippi, Arkansas, and Tennessee for their laws banning trans girls from participating in girls’ sports, but then the fatheriest of fathers of daughters of them all, Florida’s Ron DeSantis, signed his very own ban on trans girls and women participating in girls’ and women’s sports on June 1. A very merry Pridemas to all!

One of the assorted daughters and females surrounding Governor DeSantis was Selina Soule, a plaintiff who sued to end Connecticut’s transgender inclusion policy. Ms. Soule talked about the pain of competing against talented athletes who are different from her. Her lawsuit, by the way, was dismissed as moot in late April since the two trans athletes who were ruining her life graduated from high school. The Heritage Foundation described presiding Judge Robert N. Chatigny as “activist” for his exercise of judicial restraint.

This is a hot-button issue, so let me put it out there right now – sports are supposed to be fun. Kids should just get to play. There is no evidence that a trans girl on hormone therapy has an unfair advantage over biological girls in sports. Indeed, the medical evidence says otherwise, as does indisputable fact: if the two trans athletes in the Connecticut case had an unfair competitive advantage, they would have come in first and second in every race. But they didn’t. They were beaten regularly by the named plaintiffs, each of whom is an extremely gifted athlete in addition to being a biological girl.

Nothing but the deepest respect for the law of unintended consequences has me wondering what the biological girls’ parents are thinking. (As minors, the girls cannot bring a lawsuit themselves, it must be brought by a parent or legal guardian on their behalf.) As much fun as “owning the libs” may be, the girls will be high school seniors soon enough. Have their parents considered how their daughters’ roles in transphobic political theater will look to Division I NCAA colleges? The NCAA “firmly and unequivocally” supports giving transgender athletes the opportunity to compete. Lawsuits are forever.

Back to the law, these states enacted their laws knowing perfectly well that they will be struck down, according to long precedent concerning the interpretation of “on the basis of sex” in Title IX cases. As long as the athletic programs are connected with federal funds, they have to comply with federal law. The Fourth and Eleventh Circuits have already applied the Bostock definition of “sex” to Title IX, and the Second Circuit will likely do so if the Soule case is ever decided on the merits. (The Plaintiffs appealed Judge Chatigny’s “activist”.)

Healthcare is the final, broad backlash category. The Arkansan legislature, in overriding Governor Asa Hutchinson’s veto, decided that it is in a better position to make healthcare decisions for adolescents in the state than the adolescents’ own medical doctors. Specifically, it decided it must save the youth of Arkansas from gender affirming medical care because it is far better that transgender youth commit suicide than receive hormone therapy.

Think I’m joking? Being histrionic for dramatic effect? Look up the stats for suicidality in transgender adolescents. And then look up the stats for homelessness and sex work among transgender adolescents. After your stomach settles, you can clear your conscience with a donation to the youth shelter of your choice.

But back to healthcare, much ink has been spilled by the prospect of medical doctors of conscience being forced to perform gender-affirming surgery or being forced to prescribe hormone therapies. This is utter nonsense. Doctors choose the field of medicine in which they practice. Gender-affirming surgery, while lifesaving, is not emergency surgery. Hospital residents don’t get awakened at 3:00 am for emergency top surgery.

If you don’t want to perform gender-affirming surgery, the solution is simple: don’t become a plastic surgeon specializing in gender-affirming surgery. If you don’t want to prescribe hormone therapy to trans people, don’t become an endocrinologist specializing in gender-affirming hormone therapy. Trust me, trans people aren’t looking for resentful jerks to perform surgery on them or to provide any other medical care. The community knows who the good and empathetic healthcare practitioners are. If you have to ask, it ain’t you so don’t worry about it.

As a basic matter of Constitutional, employment, and human rights law, no one can be forced to perform gender-affirming surgery in this country. The Thirteenth Amendment ended slavery. If your employer insists you perform gender-affirming surgery and you do not want to for any reason whatsoever, you can work somewhere else. If you have a sincerely-held religious belief that prevents you from performing gender-affirming surgery, and your employer decides that starting tomorrow you must perform gender-affirming surgery or you will be fired, you still don’t have to do it. If you get fired or demoted or your pay is cut or you get switched to a bad shift, you have tidy discrimination and retaliation claims against your employer.

So, let’s talk about the true emergency situation. You arrive via ambulance in the emergency department of Religious Organization Hospital (which religious organization cleaves unto an unchangeable gender binary). You are unable to move one side of your body, experiencing altered states of consciousness, and a loss of balance. Your biological gender is relevant for the administration of anesthesia for your emergency cranial surgery, and it is important to disclose the medications you take.

There are probably more reasons to disclose your biological gender and hormone therapy – I’m not a medical professional – but the disclosures must be tied to your care. You should not be forced to answer endlessly invasive questions about your genitalia or to show your genitalia to all and sundry. You should not be misgendered or referred to by offensive terms. Simply, you should be treated with the same dignity-preserving respect as every person receiving medical care.

Providing emergency medical care to a transgender person does offend any legitimate religious doctrine I can think of, and I have to question the faith of anyone who claims their religion prevents them from preserving life.

When you get down to it, all LGBT people ask is that you follow the golden rule – Be Excellent to Them, as You Would have Others Be Excellent Unto You.

If you are being treated unfairly at work, in school, or by medical professionals because of your gender identity or sexual orientation, please contact our employment attorneys at Carey & Associates, P.C. at info@capclaw.com.

Frances Codd Slusarz

Sexual Orientation and Transgender (LGBTQ)

Supreme Court Says Sex Discrimination Includes Homosexuality and Transgender Status

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The Long Overdue Death Of Non-Disclosure Agreements: Uncovering The Hidden Truth Of Employment Settlements…

The Long Overdue Death Of Non-Disclosure Agreements: Uncovering The Hidden Truth Of Employment Settlements…

By Chris Avcollie,

In an often-quoted line from the hit TV series Dexter, actor Michael C. Hall, who plays the title character said: “There are no secrets in life; just hidden truths that lie beneath the surface.” For those of us involved in the resolution of employment claims on behalf of employees, this quote has special meaning. Beneath the surface of most employment settlement agreements lie the undisclosed facts that led to the conflict and which often result in the messy end of an employment relationship. Recently proposed legislation in California seeks to ensure that those “hidden truths” do not remain hidden.

California Proposes New Law – Silence No More Act (SNM Act)

A new law proposed in California this week called the Silenced No More Act (SNM Act) is intended to prevent the enforcement of non-disclosure provisions in a wide variety of employment settlement agreements. The legislation, proposed by California State Senator Connie M. Leyva, will expand upon the 2018 STAND Act (Stand Together Against Non Disclosure) and will protect plaintiffs in cases of employment discrimination and harassment of all kinds who choose to speak out publicly about their experiences. Under the current provisions of the STAND Act, only plaintiffs in cases of gender discrimination or sexual harassment may avoid non-disclosure provisions. The new law will expand the STAND Act to prevent the use of non-disclosure provisions in employee severance agreements. Under the SNM Act, targets of discrimination based on race, national origin, religion, or gender identity will also now be free to ignore the contractual gag orders companies negotiate into their settlement agreements.

This legislation has been supported by employee rights groups in California including the California Employment Lawyer’s Association and the Equal Rights Advocates.  The new laws are seen as an end to the days when employer misconduct can be hidden from public view. Workers who have been targeted with harassment and discrimination will be free to speak their truth publicly. The perpetrators of this type of misconduct can no longer hide behind the veil of secrecy provided by their company. Non-disclosure and non-disparagement agreements will no longer be used to silence employees.  The hope is that the public disclosure of the details of these abusive work environments will prevent perpetrators from targeting other workers in the future.

STAND and SNM Could Influence Other States to Pass Similar Laws

Although STAND and SNM (if it is enacted) are or would be exclusively California laws, these statutes could ultimately have a broad national impact. Other states often follow California’s lead in employment matters. Further, the fact that so many large technology companies are headquartered in California gives these laws an outsized influence on the national conversation about non-disclosure agreements. In the wake of the STAND Act, a number of states have enacted some limitations on non-disclosure enforcement including Washington, New York, New Jersey, Vermont and Tennessee. Many more states are likely to see some version of this legislation in the future.

More Cow Bell – More Corporate Disclosure and Shaming = More Equality in the Workplace

As am employment attorney, I was very curious about how this new legislation might impact the ability of plaintiff’s lawyers to negotiate settlements for clients in employment discrimination cases. Often the best leverage plaintiffs have in the early stages of an employment case is the prospect of public disclosure of misconduct on the part of a company employee or manager. The reason many companies offer settlements to claimants is to avoid embarrassing public disclosures of uncomfortable truths about their corporate culture or work environment. Companies also have an interest in keeping settlements secret to avoid what they see as “encouraging” other claimants looking to “cash in” on potential claims. In other words, the concern is that the non-disclosure and non-disparagement provisions outlawed by the STAND Act and the SNM Act are the best tools to obtain fair settlements for employees who have been targeted with harassment or discrimination.

The STAND Caveat

Further examination of the proposed statute reveals that its scope is more limited than I had anticipated. These statutes are actually structured to encourage and not to discourage early settlement of discrimination cases. The STAND Act allows for use and enforcement of NDAs (non-disclosure agreements) in cases where there has not yet been any court or agency filings. So during the initial stage of the claim, when a demand letter has been issued but where claims have not yet been filed with state or federal human rights agencies (such as the Equal Employment Opportunities Commission or “EEOC” in federal discrimination cases or the Connecticut Commission on Human Rights and Opportunities or “CHRO” in Connecticut state discrimination cases) and no lawsuit had been filed, the companies may include NDAs in settlement agreements and they are enforceable.

This exception to the ban on NDAs is highly significant. Far from discouraging early settlements of discrimination claims, this feature of the proposed law offers employers a powerful incentive to settle employment discrimination and harassment claims early. If an early settlement is not reached then the agency filings will occur and the employer will lose the right to demand an NDA as part of the settlement agreement. In order to keep employee misconduct secret, employers will have to settle employment discrimination cases early and often. While some cases can be kept secret by early settlement negotiations, targets of discrimination who want to shed light on their experience can ensure their ability to speak out by filing their claims with state and federal agencies.

What Opponents/Management/Defense Attorneys Say About Anti-NDA Legislation

Opponents of the anti-NDA legislation contend that restricting NDAs takes away a survivor’s choice to keep their case private and provides a strong incentive for employers to refuse settlement options and to defend themselves against a publicly disclosed allegation. According to Attorney Jill Basinger, an entertainment litigation partner and Michael L. Smith an associate at Glaser Weil in Los Angeles, “This harms survivors of sexual harassment and assault by removing their choice and forcing them to endure the hardship and uncertainty of a public trial as the only means of vindicating their claims.”[1] Once an agency filing occurs or a lawsuit is commenced, the NDAs become unenforceable. It seems as if these laws would remove a strong incentive for defendant employers to settle claims.

It appears, however, as if the STAND Act has resulted in an increase in pre-filing mediations in employment cases in California.[2] According to Mariko Yoshihara, the Legislative Counsel and Policy Director for the California Employment Lawyer’s Association, the predictions and fears over the STAND Act impairing the ability to settle have not borne out. According to Attorney Yoshihara, attorneys involved in this type of litigation have informally reported that the legislation has not lowered settlement amounts or impaired the settlement process. Additionally, according to Yoshihara, it has made it easier to advocate for employee rights from a public policy perspective because the targets of harassment and discrimination can make their stories public. While dispositive data on this point is not yet available, it seems as if the legislation is working in California.

Further, fears surrounding the forced public disclosure of the identity of the claimant are unfounded. Under the STAND Act there are specific provisions which protect the identity of the complaining employee in the context of a lawsuit. The STAND Act includes a specific provision that shields the identity of the claimant and all facts that could lead to the discovery of his or her identity, including documents and pleadings filed in court, at the request of the claimant. California Code of Civil Procedure 1001(c). Thus, the anti-NDA legislation does not force the disclosure of a claimant’s identity.

While many employer advocacy groups including various chambers of commerce and industry and trade associations have opposed legislation such as STAND and SNM, similar legislation should be considered by all state legislatures that have not already enacted similar laws.  When it comes to use of NDAs in employment discrimination and sexual harassment cases there is an unfair imbalance of power between the bargaining parties. The employers who are often defending the harasser or denying that the harassment occurred have an overwhelming advantage over the complaining employee in terms of investigative, legal, personnel, and financial resources. Employers are frequently holding all of the cards in a settlement negotiation. Legislation such as STAND and SNM will help to level the playing field at least with respect to NDAs.

More Power to the People/Employees – Shift In the Balance of Power

Placing the power over which aspects of the case can or will be made public in the hands of the targets of harassment and discrimination will help balance the power in the arena of employment settlement agreements. As evidenced by the initial success of the STAND Act, these laws can be an important tool in ending the culture of silence that has permitted harassing and discriminatory behavior to continue in the workplace for so long. In a recent opinion piece, the feminist writer and critic Marcie Bianco said: “If the societal change necessary for dignity and justice is to occur, we must move from awareness to accountability.”[3] This legislation should help bridge the gap between awareness and accountability. We need to see a whole lot more of those “hidden truths” lying beneath the surface of the American workplace.

If you would like more information about this article, please contact Carey & Associates, P.C. at info@capclaw.com or call 203-255-4150.

Christopher S. Avcollie

[1] Basinger, Jill and Smith, Michael L.; “How California’s NDA Restrictions Cause More Harm Than Good for Survivors” (Guest Column); Hollywood Reporter;  https://www.hollywoodreporter.com/news/how-californias-nda-restrictions-cause-more-harm-good-survivors-guest-column-1280922

[2] LeHocky, Mark, “Shining a Needed Light on Harassment and Discrimination Claims: The Collective Benefits from California’s Recent Secret Settlement Restrictions”, Contra Costa County Bar Association, March 2020;   https://www.cccba.org/article/shining-a-needed-light-on-harassment-and-discrimination-claims/

[3] Bianco, Marcie, “Britney fans angry at Justin Timberlake have a point.” CNN Opinion, February 10, 2021.

Employees, Not Independent Contractors: Closing a Loophole to Fair Benefits and Protections for Workers

Podcast: Supreme Court Says Sex Discrimination Includes Homosexuality and Transgender Status

Podcast: Supreme Court Says Sex Discrimination Includes Homosexuality and Transgender Status

Podcast: Supreme Court Says Sex Discrimination Includes Homosexuality and Transgender Status. This episode of the Employee Survival Guide discusses a landmark U.S. Supreme Court decision granting employment protection to transgender and homosexual employees.  Your host Attorney Mark Carey will run you through the case analysis and the impact on your employment rights and what you can do to protect yourself from employment discrimination based on your sexual orientation.

If you enjoyed this episode of the Employee Survival Guide please like us on FacebookTwitter and LinkedIn.  We would really appreciate if you could leave a review of this podcast on your favorite podcast player such as Apple Podcasts.

Podcast: Supreme Court Says Sex Discrimination Includes Homosexuality and Transgender Status. For more information, please contact Carey & Associates, P.C. at 203-255-4150, www.capclaw.com or email at info@capclaw.com.

The content of this website is provided for information purposes only and does not constitute legal advice nor create an attorney-client relationship.  Carey & Associates, P.C. makes no warranty, express or implied, regarding the accuracy of the information contained on this website or to any website to which it is linked to.

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Podcast: Supreme Court Says Sex Discrimination Includes Homosexuality and Transgender Status

Supreme Court Says Sex Discrimination Includes Homosexuality and Transgender Status

By Mark Carey and Fran Slusarz,

Supreme Court Says Sex Discrimination Includes Homosexuality and Transgender Status: The Supreme Court just issued a ground-breaking Bostock decision making it unlawful for employers to discriminate on the basis of a person’s sexuality or gender identity. About half the states already had laws protecting LGBTQ employees, but this decision extends employment rights to all LGBTQ folks in America and opens the federal courts to them. In this quarantine Pride Month, devoid of parades and parties, the Bostock decision is certainly something to celebrate!

On the day the Bostock case was being argued (October 8, 2019), we predicted the now historic outcome in an article stating, “…the Court will hold that sexual orientation discrimination and discrimination based on transgender status constitute sex discrimination under Title VII of the 1964 Civil Rights Act because adverse employment decision discriminating against the LGBTQ community are being made ‘because of sex’ of the employee.” Honestly, there was only one direction the Bostock holding could go, granting protected status under Title VII.

A Monumental and Unpredicted Decision for LGBTQ Employees

The decision is monumental and unpredictable for several reasons. First, it provides equal treatment to LGBTQ employees in their employment and provides tools to fight against employment discrimination. Sexual Orientation carries as equal a significance as race, national origin and religion, under Title VII.  Second, the Supreme Court’s decision demonstrates what we have been complaining about for a long time, employment law is NOT political and should not be politicized. Employment law is bi-partisan and protects everyone.  Here, conservative justices (Gorsuch, Roberts) joined with the Court’s liberal wing (Bader-Ginsburg, Breyer, Sotomayor, and Kagan) to expand Title VII protections to a whole new class of employees.  We are all equal under Title VII, contrary to current popular media depiction that as a country we are inherently unequal and divided during this election season.

Three Cases, Almost Identical Facts, and Different Outcomes

The Bostock decision actually involves three separate cases with almost identical facts and different outcomes. Frankly, advocates could not have dreamed up the perfect test cases for securing LGBTQ employment rights if they tried. They each involve long-term employees who were fired from their jobs after their employers learned they were homosexual or transgender, and for no other reason. They involve both public and private employers.

Gerald Bostock worked for Clayton County, Georgia, as a child welfare advocate for more than a decade. The county won national awards for the work he did leading the department. When “influential members of the community” made disparaging remarks about Mr. Bostock’s participation in a gay softball league, he was fired for conduct “unbecoming” a county employee. The Eleventh Circuit dismissed his case, holding that Title VII to the Civil Rights Act does not prohibit employers from firing employees for being gay.

Donald Zarda was a skydiving instructor with Altitude Express in New York. After several years with the company, Mr. Zarda mentioned to a female student that he was “100% gay” to allay any discomfort she may have felt about their tandem jump – she was going to be extremely close to Mr. Zarda, strapped to the front of his body. Days later, he was fired. The Second Circuit held that Title VII prohibited employers from firing an employee for being gay.  Mr. Zarda died before his case reached the Supreme Court and his estate continued his legal battle.

Aimee Stephens worked for R.G. & G. R. Harris Funeral Homes in Garden City, Michigan for six years. During her tenure, she presented as male. When she informed her employer that she planned to “live and work full-time as a woman” upon her return from an upcoming vacation, the funeral home fired her saying, “this is not going to work out.” The Sixth Circuit’s decision was consistent with Second Circuit: Title VII prohibited employers from firing an employee for being transgender. Ms. Stephens died last month, yet her estate carried her fight to fruition.

The New Rule Banning Sexual Orientation Discrimination

Justice Gorsuch, who wrote the opinion for the 6-3 decision, wrote:

“An employer violates Title VII when it intentionally fires an individual employee based in part on sex. It doesn’t matter if other factors beside the plaintiff’s sex contributed to  the decision. And it doesn’t matter if the employer treated women as a group the same when compared to men as a group. If the employer intentionally relies in part on an individual employee’s sex when deciding to discharge the employee—put differently, if changing the employee’s sex would have yielded a different choice by the employer-a statutory violation has occurred. Title VII’s message is ‘simple but momentous’: An individual employee’s sex is ‘not relevant to the selection, evaluation, or compensation of             employees.’…

An individual’s homosexuality or transgender status is not relevant to employment decisions. That’s because it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.

At bottom, these cases involve no more than the straight-forward application of legal   terms with plain and settled meanings. For an employer to discriminate against employees for being homosexual or transgender, the employer must intentionally discriminate against individual men and women in part because of sex. That has always been prohibited by Title VII’s plain terms—and that ‘should be the end of the analysis.’”

How Can You Protect Yourself After Bostock?

If you are a LBGTQ employee and believe you are experiencing unfair treatment at work, we have the following strategies your employer may not want you to know about.  First, very quietly write down your factual narrative in chronological order on a computer you do not use or access for work.  Writing out your story is part of the investigative process that lawyers use to determine liability and how we advise clients. If you are getting the sense you are being set up for a performance improvement plan (PIP) or termination, your employer and their employment attorneys are already examining and trying to control your factual narrative, but they will never tell you that.   Second, quietly gather all offending and supportive emails, text messages, slack message etc. and preserve them.  The content of these documents should appear in your factual narrative in some form. Third, do not tell your supervisor or HR that you have potential claims until you speak to an employment attorney in our office.  Your supervisor and HR personnel do not represent you and work only against you on behalf of the employer.  They will always deny this fact. Third, you need to decide if you are going to remain employed or seek a severance package from the employer.  We have an obligation to keep you employed for as long as possible for your income purposes. More importantly, you may be able to gather corroborating or direct evidence of discrimination by remaining employed; your employer will not predict you are secretly investigating them and trying to set them up. Yes, you can do that.  Fourth, you never want to quit your job as you cannot collect unemployment benefits and it is more difficult to demonstrate a constructive discharge (i.e. anyone would leave on similar circumstances and file a charge).  Fifth, after we put your case together, we will then place the employer on notice that it is discriminating against you because of your sexual orientation and attempt to negotiate your exit package.  Sixth, avoid litigation at all costs, due to the expense and time involved; yes lawyers do give that sort of advice and we do it every day.

Supreme Court Says Sex Discrimination Includes Homosexuality and Transgender Status: We have had many sexual orientation claims over the past twenty-four years, including several complicated transgender cases. We are more than familiar with all of the employer’s strategies and we can quickly assess the liability in your case.  For more information please contact Carey & Associates, P.C. at 203-255-4150 or send an email to info@capclaw.com.

Sexual Orientation and Transgender (LGBTQ)

Equal Opportunity: Transgender Employees Are Protected Against Discrimination

Podcast: Supreme Court Says Sex Discrimination Includes Homosexuality and Transgender Status

History in the Making Today Sexual Orientation Discrimination is Illegal

By Mark Carey

History in the Making Today Sexual Orientation Discrimination is Illegal. Sexual Orientation discrimination is being argued today before the United States Supreme Court in the combined cases of Bostock v. Clayton County George and Altitude Express, Inc. v. Zarda. The Court is also holding argument in a similar transgender discrimination case of Harris Funeral Homes, Inc. v. EEOC. The trio of cases are as important as the same sex marriage equality issue ratified by the Court in Obergefell v. Hodges.  These cases are history in the making and I predict the Court will hold that sexual orientation discrimination and discrimination based on transgender status constitute sex discrimination under Title VII of the 1964 Civil Rights Act because adverse employment decisions discriminating against the LGBTQ community are being made “because of sex” of the employee.

The controversy around the cases has more to do with “perceived politics” infecting the bench than whether sexual orientation discrimination falls within current federal law “because of sex”, which it does.  Although the Court’s majority now leans to the conservative side, the Court cannot ignore prior precedent written by Justice Scalia in Oncale v. Sundowner Offshore Services.  In Oncale, the Court held,

“Courts and juries have found the inference of discrimination easy to draw in most male-female sexual harassment situations, because the challenged conduct typically involves explicit or implicit proposals of sexual activity; it is reasonable to assume those proposals would not have been made to someone of the same sex. The same chain of inference would be available to a plaintiff alleging same-sex harassment, if there were credible evidence that the harasser was homosexual. But harassing conduct need not be motivated by sexual desire to support an inference of discrimination on the basis of sex. A trier of fact might reasonably find such discrimination, for example, if a female victim is harassed in such sex-specific and derogatory terms by another woman as to make it clear that the harasser is motivated by general hostility to the presence of women in the workplace. A same-sex harassment plaintiff may also, of course, offer direct com-parative evidence about how the alleged harasser treated members of both sexes in a mixed-sex workplace. Whatever evidentiary route the plaintiff chooses to follow, he or she must always prove that the conduct at issue was not merely tinged with offensive           sexual connotations, but actually constituted ‘discrimina[tion] … because of … sex.’”

The Court does record oral arguments and posts them to the Court’s website at the end of each argument week.  I encourage you to listen to the case, especially because the Trump Administration is arguing that Title VII does not cover sexual orientation discrimination, even though the U.S. EEOC has ruled that it does fall within the statute.

History in the Making Today Sexual Orientation Discrimination is Illegal. If you would like more information about sexual orientation discrimination and transgender discrimination, please contact employment attorney Mark Carey at 203-255-4150 or info@capclaw.com.

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