How LGBTQ + Employment Discrimination Laws Are Evolving

Last June, the Supreme Court took a major step forward in protections for LGBTQ + workers when it issued a landmark 6-3 decision in Bostock vs. Clayton County. On Bostock, the Court ruled that Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating on the basis of sexual orientation and gender identity.

Weather Bostock Addressed discrimination in the context of federal law, the Court’s decision has also had significant implications for state anti-discrimination laws.

The Bostock Decision

On Bostock, 140 S. Ct. 1731 (2020), the Court addressed three consolidated cases, each of which presented similar problems of LGBTQ + discrimination:

  • On Bostock vs. Clayton CountyGerald Bostock, a gay man, was fired for “improper conduct of a county employee” after participating in a gay softball league.
  • On Altitutde Express, Inc. v. ZardaDonald Zarda was fired shortly after revealing to a client that he was gay.
  • On RG & GR Harris Funeral Homes v. Equal Employment Opportunity Commission, an employee who had previously presented as a man was fired after notifying her employer that she planned to start presenting as a woman before undergoing gender reassignment surgery.

The plaintiffs in all three cases sued their employers for sex discrimination under Title VII. Therefore, the Court faced the question of whether the Title VII prohibition on discrimination “on the basis of sex” covered sexual orientation and gender identity.

Ultimately, the Supreme Court ruled that both were included in Title VII’s prohibition on sex discrimination. Writing for the majority, Judge Gorsuch held that:

“An employer who fires a person for being gay or transgender fires that person for traits or actions that they would not have challenged in members of a different sex. Sex plays a necessary and indisputable role in the decision, exactly what Title VII prohibits. “

Although the decision of the Court in Bostock It specifically addressed the language of Title VII, its impact has spread to other laws.

Later state laws Bostock

Many states use their own anti-discrimination laws. Most, however, do not include explicit protections for sexual orientation and gender identity. At the moment, twenty seven states make not They have anti-discrimination laws that protect people from discrimination in employment, housing, and public places on the basis of sexual orientation and gender identity. At the same time, forty-nine out of fifty states they have general anti-discrimination laws that cover “sex” or “gender.”

Bostock has had a significant impact on the enforcement of these state laws. Recently, a Texas Court of Appeals addressed the question of whether Bostock applied to the Texas Human Rights Commission Act (TCHRA), which prohibits discrimination “on the basis of … sex.” Tarrant Cnty. Coll. Dist. V. Sims, No. 05-20-00351-CV (Tex. App. March 10, 2021).

The court held that, in light of the Supreme Court’s decision in Bostock, were forced to read the TCHRA prohibition on sex discrimination “as a prohibition of discrimination based on an individual’s status as a homosexual or transgender person.”

And Texas is not the only state to back SCOTUS’s reasoning in Bostock. Several other states have not waited for litigation to decide whether Bostock applies to the law of your state, rather than formally announcing your intention to adopt the Bostock reasoning. In February, the Florida Human Relations Commission issued a notice that I would start to follow Bostock when investigating cases of sex discrimination at the state level. Five other states – Arizona, Kansas, Nebraska, North Dakota, and Pennsylvania – have also adopted Bostock in state law.

Because it is important

While the Bostock The decision extended protections under federal law against discrimination to LGBTQ + workers in all fifty states; many state laws offer stronger protections than those available under Title VII.

For example, Title VII applies only to employers with at least fifteen employees. 42 USC §2000e. The most State employment discrimination laws, including those in Arizona, Kansas, North Dakota, and Pennsylvania, cover smaller employers. Adopting Bostock Rationale, those states now offer protection to LGBTQ + employees whose employers may not be covered by Title VII.

State laws can be more generous in other ways as well. Title VII limits damages in employment discrimination claims at different levels, depending on the size of the employer. This can be as low as $ 50,000 and as high as the maximum combined compensatory and punitive damages of $ 300,000 (this does not include damages for lost wages). 42 USC §1981a.

However, some states, such as Florida, do not impose a limit on compensatory damages for private employers. Fla. Stat. §760.11 (5).[1] This means that, particularly for employees of smaller employers, it may be possible to recover more in damages for a discrimination claim under state law than Title VII.

Controversy over Bostock

Although many have celebrated the Bostock In deciding to grant new legal protections to LGBTQ + people, some have argued that these protections are in tension with the religious freedoms of employers, who, due to their religious beliefs, may object to hiring an LGBTQ + employee. In fact, the Supreme Court ruling in Bostock specifically contemplated this possible conflict.

This argument is fundamental to recent outfit, The Council of Pastors of USA v. Equal Employment Opportunity Commission, which was presented by Christian groups in the Northern District of Texas. The plaintiffs in the lawsuit argue that they are entitled to a “religious exemption” from Bostock under the First Amendment and the Religious Liberty Restoration Act (RFRA). Furthermore, they contend that they can still enforce what they claim are “gender neutral” anti-LGBTQ + policies, such as a ban on employees from attending gay bars or using dating apps like Grindr. Costume resisted a motion to dismiss in January and is currently scheduled for testing this summer.

Discussions about religious freedom have also featured prominently in recent clashes over LGBTQ + anti-discrimination policies outside of the workplace. The Supreme Court is expected to issue a key decision this month in Fulton vs. the City of Philadelphia, which deals with the City of Philadelphia’s refusal to hire a Catholic social services organization that refuses to provide services to same-sex couples. In a recent presentation, the Justice Department he also announced his intention to “vigorously” defend the exemption of religious schools from discrimination laws against LGBTQ + people.

With multiple challenges to the protection of sexual orientation and gender identity, including those granted by Bostock – pending, the next few months could be key in determining the scope of job discrimination protections for LGBTQ + people.

[1] Florida limits punitive damages to $ 100,000 for all private employers

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