LBGTQ Rights in the Workplace

LBGTQ Rights in the Workplace

Are LBGTQ employees protected from discrimination at work? Finally, after years of litigation, we know that the answer to this question is “yes.”

On June 15, 2020, the Supreme Court issued its opinion in Bostock v. Clayton County, Georgia. In this case, the Supreme Court had to decide whether an employer can fire someone simply for being homosexual or transgender without violating Title VII.

And, the court ruled that an employer cannot do so. As Justice Gorsuch explained, “An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”

Title VII’s mandate is simple.  Under Title VII, it is “unlawful  … for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment because of such individual’s race, color, religion, sex or national origin.”

For years, it had been debated whether “sex” as used in Title VII extended to LBGTQ status.  To explain why it does so, Justice Gorsuch used the example of a company with two employees (one male and one female), both of whom are attracted to men. If the company fired the male employee for no reason other than that he is attracted to men, then the company discriminated against him for traits or actions that it tolerated in the female colleague. Thus, the company used the employee’s sex in playing an impermissible role in the employment decision.

The issue of whether LBGTQ employees were protected under Title VII has been litigated for close to 50 years. For too long, LBGTQ employees who sought legal help after being fired because of LBGTQ status were told that their status as LBGTQ was not “protected” under Title VII. 

No more. After decades of litigation, the Supreme Court finally made it definitive:  an employer who fires an individual merely for being gay or transgender defies the law and violates Title VII.

If you believe that you have been discriminated against at work because of LBGTQ status, we can help.

Cases to Watch in 2020

Cases to Watch in 2020

Cases to Watch in 2020 

Get prepared for some big developments in employment law in 2020.  One key case should answer a longstanding  question about whether Title VII protects a person from discrimination because of sexual orientation.  The other key case may lead to real and systemic change in equal pay.

Sexual Orientation Discrimination 

A trio of cases pending at the United State Supreme Court considers the issue of whether sexual orientation is a protected category under Title VII.  

Title VII outlawed discrimination “because of” sex.  What does that mean?  If a person is gay or lesbian and is discriminated against at work, is that “because of” sex?  In the past, most courts said no— sexual orientation was not protected under Title VII.  So, an employee fired for being gay or lesbian had no legal claim he or she could pursue. 

In recent years, some cases eroded those legal holdings. And, last year, 3 of those cases went to the Supreme Court.  Now, the Supreme Court will make the final decision on this issue.  We should get an opinion out of the Supreme Court on this issue before the end of June.

Right now, there really is no way to predict which way the court will go on this issue.  However, if the Court finds that sexual orientation is not protected under Title VII, the next stop in this legal battle will likely be Congress. If the Supreme Court finds that sexual orientation is not covered by the law, it is likely that Congress will be lobbied to change the law.

Equal Pay  

In 2019, the USA women’s soccer team cleaned up at the World Cup.  Notwithstanding their stellar success, the women were still paid significantly less than the far less successful male soccer team.  In a case that has gotten much publicity, the women sued for pay discrimination.  The women brought claims under both Title VII and the Equal Pay Act for the pay difference. 

In November, the women got a big victory when the court certified the lawsuit as a class action for the Title VII claim.  The lawsuit also got certified as a “collective action” on the Equal Pay Claim.  This was vigorously opposed, so getting this relief from the court is a big win for the women’s team members. 

And, the court set this case for trial in May 2020.  That means that we do not have to wait too long to see whether this case will actually go to trial or whether the parties reach some agreement. 

This case has been so important because the publicity it received has really stirred a dialog about equal pay issues and caused many people to start actively thinking about pay discrimination.  No matter what happens with the women’s soccer team, that conversation is certainly going to continue.

Stay Tuned!