Client Update: Federal Employment Discrimination Law Protects LGBTQ Employees Nationwide

Supreme Court Confirms Title VII Protects LGBTQ Workers from Employment Discrimination  

On June 15, 2020, the United States Supreme Court issued its opinion in Bostock v. Clayton County, holding that an employer who fires an individual for being lesbian, gay, bisexual, or transgender violates Title VII of the Civil Rights Act of 1964. The Court considered three separate cases in reaching its decision. Clayton County, in Georgia, fired Gerald Bostock for conduct “unbecoming” a county employee after he began participating in a gay recreational softball league. Altitude Express, a skydiving company, fired Donald Zarda days after he told a client that he was gay, to ease her anxiety, since she was about to be strapped to him for a jump. And R.G. & G.R. Harris Funeral Home had fired Aimee Stephens, who presented as a male when she was hired,  after she informed her employer that she planned to “live and work full-time as a woman.” The owner of the funeral home testified that he planned to fire Stephens because she “was no longer going to [present] as a man” but rather wanted to dress as a woman.

Twenty states, including Colorado, along with the District of Columbia, already expressly prohibited employment discrimination based on sexual orientation and gender identity. Title VII joins these statutes in Bostock, which makes clear that Title VII’s prohibition on sex-based discrimination includes discrimination based on sexual orientation and gender identity.

Title VII prohibits employment discrimination that occurs “because of . . . sex.” This means that if an employer relies even in part on an individual employee’s sex when deciding to discharge the employee, or if the employer’s decision would have been different had the employee been of a different sex, then Title VII has been violated. The worker’s sexual orientation or transgender status need not be the sole reason for the decision for the employer to be liable for discrimination.

Justice Gorsuch, writing for the 6–3 majority, explained that the text of Title VII makes it impossible to discriminate against a person for being LGBTQ without discriminating against that person based on sex. The Court explained its reasoning by providing two examples that show that “changing the employee’s sex would have yielded a different choice by the employer.” In the first example, the Court asks us to consider an employer with two materially identical employees, John and Jane. The employer, upon learning that both of the employees are attracted to men, fires John for no reason other than that he is attracted to men. In doing so, the employer discriminates against John for traits or actions that the employer tolerates in Jane, i.e., being attracted to men. By permitting Jane to be attracted to men and keep her job, but denying John the same right, the employer is treating men differently than women and is thereby discriminating on the basis of sex in violation of Title VII.

The Court applies similar logic to a transgender employee. In that example, an employer fires a transgender person who was assigned male at birth but identifies as a female. If the employer retains an otherwise identical employee who was assigned female at birth, the employer intentionally penalizes the person assigned male at birth for traits or actions that the employer tolerates in the employee assigned female at birth. In both of these situations, the Court reasons, the individual employee’s sex plays an unmistakable and impermissible role in the discharge decision.

These examples are instructive, because even though sexual orientation or gender identity may not be the only reason for the adverse employment action, if the adverse decision would not have been made but for the person’s LGBTQ status, the employer has violated Title VII, based on the express wording of the statute.

Applicability of Title VII and CADA

Colorado is one of several states that led the way in recognizing nondiscrimination protections in employment under the 2008 version of the Colorado Anti-Discrimination Act (“CADA”). With Bostock, federal government workers and individuals who work in states that had not yet specifically prohibited discrimination on the basis of sexual orientation and gender identity are now protected. In those states, LGBTQ workers facing discrimination may now bring complaints under Title VII to protect their jobs.

Title VII applies to any person with 15 or more employees and any agent of the person, including labor organizations, employment agencies, and U.S. companies operating oversees (for U.S. employees), unless complying with Title VII would violate foreign law. Some religious entities and private membership clubs are excluded. Employees, applicants, and U.S. citizens working abroad for U.S.-controlled companies are protected.

CADA applies to all employers except religious organizations or associations not supported by money raised from taxation or public borrowing. It covers employees and applicants, but expressly does not cover independent contractors (although the burden is on the employer to prove independent contractor status); unpaid volunteers; workers in domestic service; partners, officers, board members, shareholders, with some qualifications; elected officials; or religious ministers.

Prohibited Conduct under Title VII and CADA

Both Title VII and CADA prohibit a broad range of discriminatory conduct, including:

  • failure to hire;
  • termination;
  • demotion or failure to promote;
  • discriminatory compensation;
  • harassment and the failure to prevent or eliminate it;
  • discriminatory terms and conditions of employment;
  • discriminatory classification or segregation of employees or applicants;
  • discriminatory preferences in job posting or advertisements;

Individual Liability

There is no individual liability under Title VII; however, under CADA, individuals may be liable for violations if they aided, abetted, compelled or coerced a discriminatory or unfair labor practice; obstructed or prevented any person from complying with the provisions of CADA; or attempted to commit any act defined as a discriminatory or unfair employment practice.

Remedies

Both laws include a variety of remedies: equitable relief (such as injunctive relief and reinstatement), as well as damages, including back pay, front pay, compensatory damages (for pain, suffering, inconvenience, mental anguish, and loss of enjoyment of life) and punitive damages (up to statutory caps), plus interest, attorney’s fees and costs.

Juli E. Lapin

For information or counseling about employment law matters, contact any of the members of our Employment Law Practice Group – Daniel Block, Kimberly Bruetsch, Juli Lapin, or Michelle Magruder

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