Recent Supreme Court Ruling: Title VII Protects Gay and Transgender Employees

By Debra L. Reilly and Julia N. Reilly

On June 15, 2020, the U.S. Supreme Court ruled in Bostock v. Clayton County¹ that Title VII of the Civil Rights Act of 1964 protects gay and transgender employees from discrimination.

The 6-3 decision surprised court watchers not only with its unexpected holding, but also with the composition of the justices who decided it. The majority opinion was written by Justice Neil Gorsuch, who was joined by Chief Justice John Roberts, and Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan; Justices Samuel Alito and Clarence Thomas more predictably joined in one dissent, and Brett Kavanaugh dissented separately.

The decision provides guidance for workplace investigators searching for findings and conclusions in cases involving gay and transgender employees. In addition to summarizing the salient points of Bostock, this article offers timely and practical pointers for investigators striving to reach well-reasoned, well-analyzed factual findings regarding the motivation behind potentially gender-based actions.

A Look at the Cases

The Supreme Court’s recent decision resolved cases from three different circuits.

Bostock v. Clayton County²

Gerald Bostock worked as a services coordinator assigned to the Juvenile Court for Clayton County, Georgia. After he began playing in a gay recreational softball league, he was openly criticized by people with significant influence on local decisionmaking—including an individual who made disparaging comments about Bostock’s sexual orientation at a public board meeting. Soon after, Clayton County terminated Bostock for conduct “unbecoming” a county employee. Bostock sued, alleging the firing was in reality based on his sexual orientation and violated Title VII. The district court granted the county’s motion to dismiss, and Bostock appealed to the Eleventh Circuit, which affirmed the dismissal.

Altitude Express, Inc. v. Zarda³

Donald Zarda was a skydiving instructor at Altitude Express in New York, where he regularly participated in tandem skydives, strapped hip-to-hip with clients. In June 2010, Zarda told a female client that he was gay to ease her discomfort of being strapped to a man’s body, but subsequently, the client alleged he had inappropriately touched her and disclosed his sexual orientation merely to excuse his behavior. Zarda was fired shortly thereafter. He denied inappropriately touching the female client and insisted he was fired solely because of his sexual orientation. He then brought a lawsuit in federal court, alleging violations of Title VII and state law. The district court granted summary judgment to Altitude Express on the Title VII claim, citing Second Circuit precedent in Simonton v. Runyon. ⁴ On appeal, the Second Circuit overruled Simonton, finding that Title VII’s prohibition on discrimination because of sex includes sexual orientation.

R.G. & G.R. Harris Funeral Homes⁵

Aimee Stephens was hired as a funeral director and embalmer. During the course of her employment, she presented as a man and used her then-legal name, William Anthony Stephens. After six years on the job, Stephens provided a letter to her boss stating that she intended to have sex reassignment surgery, and ”to live and work full-time as a woman.” Two weeks later, she was fired. Stephens then filed a sex discrimination charge with the EEOC, which brought a lawsuit against the funeral home for violating Title VII by terminating Stephens’ employment based on gender identity. The district court granted summary judgment for the funeral home, and the Sixth Circuit reversed, holding that the termination based on her transgender status was discriminatory, in violation of Title VII.

Issue and Reasoning

Title VII of the Civil Rights Act of 1964⁶ makes it unlawful to discharge or otherwise discriminate against any individual based on race, color, religion, sex, or national origin. The issue before the U.S. Supreme Court in Bostock was whether the word “sex” includes discrimination based on an individual’s sexual orientation or gender identity. The Court ruled that the plain statutory language of Title VII, which prohibits discrimination “because of” or “by reason of” sex, incorporates discrimination based on sexual orientation and transgender status. The Court used the “but-for” standard of discrimination and clarified that sexual orientation and gender identity only need to be “a but-for” cause of discrimination, not “the but-for” cause. It reasoned that it simply doesn’t matter if other factors in addition to sex contributed to the decision to discriminate. It characterized Title VII as conveying both a “simple and momentous” message: “That’s because it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”⁷

And the Court provided two tangible examples to demonstrate its reasoning:

• Two employees, materially identical in all respects, are both attracted to men. However, one is a man and one is a woman. If the employer fires the man for no reason except that he is attracted to men, “the employer discriminates against him for traits and actions it tolerates in his female colleague,” and the male employee’s sex is “a but-for” cause of his discharge.
• An employer fires a transgender person who identified as male at birth, but now identifies as female. If the employer does not fire a materially identical employee who identified as female at birth, “the employer intentionally penalizes a person identified as male at birth for traits or actions that it tolerates in an employee identified as female at birth.”⁸

The Court noted that an employer who discriminates against homosexual or transgender employees inescapably intends to rely on sex in its decision-making. For example, if an employer has a policy of firing any homosexual employee, and the employee arrives to an office party and introduces his or her wife, whether or not that employee will be fired depends entirely on whether the employee is male or female.

Practice Tips for Workplace Investigators

Nearly half the states⁹ currently prohibit discrimination against employees based on sexual orientation, gender identity, and gender expression, including California in its Fair Employment and Housing Act.¹⁰ In the other states, the Court’s recent decision will allow employees to prevail in lawsuits against their employers under Title VII. However, employers with fewer than 15 employees will continue to be governed by relevant state and local laws.

Avoiding Microaggressions in Interviews

When proceeding with this type of workplace investigation, investigators should be sure to revise any standard interview questions to be gender neutral. Ask interviewees how they self-identify, if it is relevant. Try not to make assumptions about interviewees’ or parties’ use of preferred personal pronouns, gender identity, or sexual orientation. Avoid asking accusatory questions based on your own unconscious biases and assumptions.

Investigators should also avoid using potentially hurtful LGBTQ macro- or microaggressions and actively listen during witness interviews to determine if witnesses or the accused use such aggressions—and importantly, whether the employer’s culture allows it. According to Michelle E. Phillips, a principal In the New York office of the labor and employment law firm Jackson Lewis, employees and employers should use the term “transgender” as an adjective, not as a noun. For example, do not say: “Tony is a transgender,” or “The parade included many transgenders.” Instead say: “Tony is a transgender man,” or “The parade included many transgender people.”

Phillips also underscores that for most, if not all, transgender people, their gender did not “change.” For a transgender man, for example, investigators should not refer to the period before the individual’s affirmation or transition as “when you were a woman.” Instead, if during your witness interview a discussion of that time period is unavoidable, then refer to the period “before your transition” or “before your affirmation.”

Other experts warn that investigators conducting LGBTQ-related investigations should also be aware of the concept of “deadnaming.” Deadnaming occurs when someone, intentionally or not, refers to a person who is transgender by the name used before transitioning, which can cause them to feel invalidated, disrespected, and unsupported. Additionally, deadnaming a transgender person in front of another individual who does not know the transgender person can “effectively out them.”¹¹

Finally, although it probably goes without saying, investigators should never ask transgender people—likely the complainants in such investigations—whether they have had surgery or hormone treatment, just as you would not ask any other person about private medical issues. Whether interviewees have had medical or surgical treatment should have no bearing on their gender or your analysis, unless such treatment is offered up by the witness without any prompting.

Guidance in Gathering Evidence

Based on the Bostock decision, and depending on the jurisdiction and the number of employees in an organization, workplace investigators may wish to search for, and consider, the following types of facts when examining LGBTQ allegations.

• If required by the scope of work in a given investigation, analyze the employer’s written EEO policies to determine whether they are up-to-date according to the laws of the local jurisdiction regarding the protected characteristics of sexual orientation, transgender status, gender identity, and gender expression. An employer’s failure to update policies in these areas could potentially indicate an intent to discriminate against these individuals.
• Examine the employer’s open-door, anti-discrimination, and anti-harassment policies to determine whether they include nonbinary gender designations among the protected categories of employees.
• Review the employer’s policies to determine whether they state that any kind of abuse, maltreatment, or oppression of nonbinary workers is not permitted in any fashion. Also check to see whether they invite or encourage employees to speak confidentially to the human resources department or any member of management concerning nonbinary gender designation issues.
• Scrutinize the employer’s policies, handbooks, employee forms, and website to determine whether they contain specific gender designations, such as, “his or her,” or “he or she,” or “him or her.” Contemporary English is leaning toward using “they,” “them,” and “their” as singular, genderneutral pronouns.¹² Also check to whether these sources ask gender identity questions in a nonbinary way, for example: “How would you describe your gender identity?” Does the employer allow for other options beyond “male” and “female?” Does the employer’s form offer options, such as, “In another way,” or “Prefer not to say?”
• Question whether the employer trains its managers about nonbinary individuals and making certain they know that such employees or applicants must be treated with dignity, courtesy, and professionalism.
• Review the employer’s dress code to determine whether it includes gender-related restrictions and different rules for each gender. Dress codes should focus on general professionalism—not be enforced in a gender-based manner.
• Find out whether the employer allows access to restroom facilities corresponding to each employee’s identified gender. For nonbinary employees, this could entail use of a multiple person, or single-person, unisex bathroom available to any employee at any time.
• Examine whether the culture of the company has policies, practices, and procedures reflecting the employer’s acceptance of employees’ LGBTQ status and will work with them to ensure they continue to have a professional and comfortable work environment.
• Determine whether the employer allows employees to choose their own gender-related pronouns and honorifics—perhaps “Mx.” in lieu of “Mr.” or “Ms.” Also check whether it permits employees to include their preferred gender pronouns in email signature lines.
• Ascertain whether employers allow employees to select the name they choose on their placards, email addresses, and business cards.

Writing Factual Analyses and Conclusions

The new clarified standard of “a but-for” cause may change the way workplace investigators write their findings of fact regarding the employer’s motivations and causation.

Sexual orientation or gender identity need not be the sole reason or even the leading motivation for differential treatment amounting to discrimination in violation of Title VII. Keep in mind that an employer’s mere demonstration or argument that it treats males or females comparable “as groups” may not form the sole basis of your conclusions regarding the issues of “motivation” and causation.

Instead, examine how the employer treated that particular individual, rather than the class that individual falls within. As the Court in Bostock queried: “Suppose an employer fires a woman for refusing his sexual advances. It’s no defense for the employer to note that, while he treated that individual woman worse than he would have treated a man, he gives preferential treatment to female employees overall. The employer is liable for treating this woman worse in part because of her sex. Nor is it a defense for an employer to say it discriminates against both men and woman because of sex.”¹³

California Considerations

The Supreme Court’s recent opinion in Bostock did not take on or analyze related issues, such as transgender persons’ access to restroom facilities and dress codes.

However, a number of issues have already been established under California law. Under the state’s Fair Employment and Housing Act (FEHA):¹⁴

• Employees may use the restroom or locker room corresponding to their gender identity,
• Employers are required to honor an employee’s request to be identified by the preferred gender, pronoun, and name, and
• Employers may not enforce dress codes inconsistent with an employee’s gender identity.

In addition, under California’s FEHA, in mixed-motive cases, where there is more than one reason for the employer’s adverse action, a plaintiff employee must prove that the discrimination was a “substantial factor” motivating the adverse employment action.¹⁵ If a jury finds that an employer’s action was substantially motivated by discrimination, the employer must prove that the non-discriminatory factor, standing alone, would have resulted in the same decision by the employer.

Despite this more stringent standard in California cases filed under the FEHA, workplace investigators should reach findings concerning all of the employer’s motivating factors. Upon obtaining the investigative report, the employer can determine whether a workplace policy has been violated.

 

Originally published in The AWI Journal Vol. 11 No. 3 September 2020.

 

1 Bostock v. Clayton County, 140 S.Ct. 1731 (2020). 2 Bostock v. Clayton County, 723 F. Appx 964 (11th Cir. 2018). 3 Altitude Express, Inc. v. Zarda, 883 F.3d 100 (2d Cir. 2018). 4 Simonton v. Runyon, 232 F.3d 33 (2d Cir. 2000). 5 R.G. & G.R. Harris Funeral Homes, Inc. v. EEOC, 884 F.3d 560 (6th Cir. 2018). 6 42 U.S.C. § 2000e-2(a)(1). 7 Bostock v. Clayton County, No. 17-1618, slip op. at 9 (USSC June 15, 2020). 8 Id. at 9-10. 9 Nat’l Conf. of State Legislatures: https://www.ncsl.org/research/labor-and-employment/employment-discrimination.aspx. 10 Cal. Gov. Code §§12900-12996. 11 See, KC Clements, “What Is Deadnaming?,” Healthline (Oct. 2017), https:// www.healthline.com/health/transgender/deadnaming. 12 “Singular ‘They,’” Am. Psych. Ass’n, https://apastyle. apa.org/style-grammar-guidelines/grammar/singular-they?_ ga=2.27850292.905045038.1597968062-1294962806.1597968062. 13 Bostock v. Clayton County, No. 17-1618, Slip op. at 8 (USSC June 15, 2020). 14 Cal. Gov. Code §§12900-12996. 15 Harris v. City of Santa Monica, 56 Cal. 4th 203 (2013).