SCOTUS Slugfest Results in LGBTQ Workplace Protection

In what can only be described as a landmark decision after almost 100 years of debating, gerrymandering and protesting everywhere from local courthouses to the White House, the LBGTQ community has finally won their legal protection from a majority of a full Supreme Court. In a cluster of cases brought before the Bench in Bostock v. Clayton County, Georgia, 590 U.S. ___ (2020), Justice Gorsuch, writing for the majority, declared that Title VII’s protection of “sex” as a class includes the LBGTQ community. Now, employers who have fifteen or more employees will now have to pause before deciding whether or not to hire, fire, discipline, demote or disparage a person with an LBGTQ status.  

The move was tricky. Obviously, Congress did not amend Title VII to include “LBGTQ” in the litany of classes under federal protection. Justice Gorsuch, along with Roberts, C.J., Ginsberg, Breyer, Sotomayer and Kagan, joining, writes that “unexpected consequences” may result from the “written word of the law,” i.e., “sex” as “understood in the ordinary public meaning.” In distinguishing the “ordinary public meaning” in 1964 when Title VII was promulgated, with the “ordinary public meaning” in 2020 when the majority feels like the “time has come,” Justice Gorsuch reasons that the LBGTQ community has the same human sexual desires as heterosexuals, and that any person with a human sexual desire of some type must be protected from unlawful discrimination in employment. Put differently, employers are not allowed to hire, fire or otherwise discriminate on the basis of someone’s sexual desire. This includes sexual expression, transgender and other types of non-binary gender representation that exist in our society today. “Sex” no longer means a binary system of gender-labeling.            

The move was not without reproach, according to Justices Alito and Kavanaugh, who call out the majority for legislating from the bench, reasoning, “… If the Court finds it appropriate to adopt this theory, it should own up to what it is doing.”  

Justice Gorsuch additionally articulated the following points, which we are likely to see in pleadings across the country:

• It’s not a defense for an employer to say that because it fires both men and women, it is an equal opportunity discriminator; if you discriminate against men and women, you don’t cancel out the discrimination, you double it.
• It’s not a defense to say discrimination was not the sole motivation for the adverse employment action; if it’s part of it, then liability attaches.
• It’s not a defense to characterize or label your employment decision as non-discriminatory. If the decision is based, in part, on “sex,” it’s illegal and liability attaches.
• It’s not a defense to say an employer doesn’t discriminate in hiring or firing against groups, i.e., “men” and “women.” It’s about this particular man or woman; this ruling is about individuals – not groups.

With the focus back on the individual employee, rest assured that defense lawyers across the country will devise other strategies to successfully defend claims brought against their clients for unlawful discrimination “on the basis of sex.”

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