US Supreme Court: Sexual Orientation and Gender Identity
are protected classes under Title VII of the Civil Rights Act
On June 15, 2020, the United States Supreme Court held in the case of Bostock v. Clayton County, Georgia that sexual orientation and gender identity are protected classes under Title VII of the Civil Rights Act of 1964.
The Court’s opinion actually arises from three separate cases: (a) Zarda v. Altitude Express, (2) Bostock v. Clayton County, Georgia, and (3) EEOC/Stephens v. R.G. & G.R. Funeral Homes. In each of the cases, the plaintiffs claimed they were fired in violation of Title VII of the Civil Rights Act of 1964. In the Zarda case, the United States Court of Appeals for the Second Circuit held that Title VII prohibits discrimination based on sexual orientation. In the EEOC/Stephens and Bostock cases, the Sixth and Eleventh Circuit Courts of Appeal came to the opposite conclusion, finding that Title VII of the Civil Rights Act did not prohibit employers from discriminating against employees on the basis of their gender identity (EEOC/Stephens) or their sexual orientation (Bostock). Ultimately, the Supreme Court sided with the Second Circuit and held that sexual orientation and gender identity were protected classes under Title VII.
How did the Court come to this decision?
The Court determined that sexual orientation and gender identity are protected classes under Title VII of the Civil Rights Act of 1964. Title VII makes it “unlawful . . . for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual . . . because of such individual’s race, color, religion, sex, or national origin.” 42 U. S. C. §2000e–2(a)(1). The Court found that the term “sex” in 1964 only referred to the biological distinctions between male and female; however, because discrimination on the basis of a person’s homosexuality or transgender status requires an employer to intentionally treat individual employees differently because of their sex, an employer who intentionally penalizes an employee for being homosexual or transgender violates Title VII. The Court reasoned that when an employer fires an employee “for being homosexual or transgender,” that employer “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.”
What are the practical consequences for an employer?
This decision immediately provides legal protections to an employee’s sexual orientation and gender orientation or expression under federal law. Employers may now face Title VII liability for adverse employment actions where the motivating factor behind such a decision is the employee’s status as a transgender or homosexual person.
How does it affect me as an employer?
To the extent they do not already, Employers should immediately update their EEO policies to cover both sexual orientation and gender identity. Employment policies that delineate protected categories, especially the primary non-discrimination or equal opportunity policy, should now include the terms, “sexual orientation” and “gender identity or expression” or “gender identity.” Additionally, employers should modify their employee training and orientation programs to adequately reflect this significant change in the law.
The impact of this decision, and the potential impacts on your business will be ever changing over the next few weeks and month(s). This document is not meant to be exhaustive, but only a primer on certain issues which may affect employers. If you have questions about implementing a policy or a specific situation which arises in your workplace, please call the lawyers at Fox Smith, LLC at 314-588-7000 or by email at email@example.com or firstname.lastname@example.org.
Ron Fox was recently named to a three year term on the Board of Trustees for Whitfield School. Whitfield School is an independent, coeducational college preparatory day school for grades 6–12, located on a 26–acre campus in suburban St. Louis.
Ryan Mohr and Sarah Mangelsdorf will present at the 2020 Missouri Bar Solo and Small Firm Conference. The conference will be held August 20-22, 2020 at Margaritaville Resort in Osage Beach. The duo will be addressing the group on ESI Rules and Cybersecurity for attorneys.
Tom Smith wins defense verdict in injury claim tried in St. Louis City Circuit Court. Plaintiff alleged serious and permanent injuries from an auto accident in which plaintiff’s vehicle was struck from behind by defendant’s car. Although defendant accepted responsibility for the accident, defendant contested the nature and extent of plaintiff’s injuries as well as cause and necessity of plaintiff’s medical treatment. Although plaintiff offered testimony from the medical provider regarding plaintiff’s medical treatment, plaintiff opted not to submit any medical bills. Plaintiff sought recovery for past and future pain and suffering and requested the jury award $250,000. The jury found in favor of defendant.
Stas Levchinsky returned to Fox Smith, LLC in 2020. Stas has extensive trial and appellate experience and focuses his practice on maritime and admiralty law, as well as commercial defense litigation. Prior to private practice, Stas served as Director of the White Collar Crime and Fraud Unit for the St. Louis City Circuit Clerk. He has tried over 30 jury trials and 20 bench trials, including a Jones Act wrongful death case.
Richard Korn and Meggie Gentzen are defending a not-for-profit organization in an employment discrimination case brought under the Missouri Human Rights Act in the Circuit Court of Jackson County, Missouri. After the lawsuit was filed, they filed a motion for judgment on the pleadings based on the fact that the plaintiff had obtained a right-to-sue from the EEOC, but not the MCHR. The trial court, inclined to grant the motion, allowed the plaintiff time to request a right-to-sue from the Commission. Richard and Meggie lodged objections with the Commission on the basis that the Plaintiff’s request was untimely. The Commission agreed and denied the plaintiff’s request. The plaintiff then filed a Writ of Mandamus in the Circuit Court of Cole County, Missouri asking the court to compel the Commission to issue a right-to-sue. After the issue was fully briefed and argued, the court denied the plaintiff’s request for a Writ. A great result and likely a quick ending to the case!
Ryan Mohr and Sarah Mangelsdorf will speak at the Chemical Industry Council of Illinois (CICI) event on February 13. The event is co-sponsored by CICI and Gateway Society of Hazardous Materials Managers (GSHMM) The duo will speak on the topic “How to Stay in Compliance and Out of Trouble” at the Environmental Enforcement St. Louis Seminar at The Engineers Club of St. Louis. For more information, please visit https://www.cicil.net/index.php?option=com_jevents&task=icalrepeat.detail&evid=58&Itemid=115&year=2020&month=02&day=13&title=cici-a-gshmm-environmental-enforcement-seminar-st-louis&uid=6c0670e198d11a092c0e4376120fa988
Richard Korn and Sarah Mangelsdorf recently obtained a defense verdict in favor of their client, a general contractor, after a three day jury trial before Judge Michael Mullen in the Circuit Court of the City of St. Louis. In the case, the Plaintiff was the owner of a 197 unit student apartment building near the campus of St. Louis University. In July 2012, the building was significantly damaged by a fire. Richard and Sarah’s client was retained to demolish and reconstruct the portion of the building destroyed by the fire, and rehab/renovate another section of the building damaged by the inundation of the building with water during the fire suppression effort.
Two years later, in May 2015, a building employee opened a valve on the building’s first floor resulting in the failure of a pipe in the ceiling, a large scale flood, and $350,000+ in property damage. In addition to claiming that the plumbing subcontractor installed a defective plumbing system, Plaintiff’s theory was that Richard and Sarah’s client, the general contractor, improperly and negligently concealed the existence of the allegedly defective plumbing by drywalling over it and not creating an access panel in the ceiling so that the existence of this plumbing could be discovered. After deliberating for only 45 minutes, the jury returned a defense verdict.
Fox Smith, LLC has named Meggie Gentzen Partner effective 1/1/2020. Meggie joined the firm in 2012. She focuses her practice in the areas of commercial litigation and employment law.
Peter Cosgrove joined the Fox Smith team in 2019. Prior to joining Fox Smith, Peter practiced at a large, regional defense firm in St. Louis. He focuses his practice in the areas of commercial litigation, employment law, health law, and professional liability.