Employees Cannot Be Fired Merely For Being Homosexual Or Transgender: US SC

In a remarkable and righteous decision, the US Supreme Court in Gerald Lynn Bostock Vs Clayton County, Georgia which is Certiorari To The United States Court Of Appeals For The Eleventh Circuit No. 17-1618 and which was delivered on June 15, 2020, has laid down cogently, clearly and convincingly that employees cannot be fired from the jobs merely because of their transgender and homosexual identity. It also lays down in simple and straight language that, “An employer who fires an individual merely for being gay or transgender defies the law.” Very rightly so!

To put things in perspective, the majority judgment was authored by Justice Neil McGill Gorsuch in which Roberts, C.J., and Ginsburg, Breyer, Sotomayor and Kayan, J.J. joined. But Justices Alito, Thomas and Kavanaugh dissented. The Court by a 6-3 majority held that Civil Rights Act of 1964 prohibiting workplace discrimination on the basis of sex also protects employees based on their sexual orientation or gender identity. It must be mentioned here that the Civil Rights Act explicitly prohibits discrimination of any kind in the workplace on the basis of race, colour, religion, sex or national origin.

Be it noted, in this case which arises out of a petition filed by Bostock who is a long-time employee was allegedly fired by his employer simply for being homosexual or transgender. The issue that was considered by the Court was whether the Act prohibits discrimination on the ground of sexual orientation or gender identity? This key issue was examined in detail by the US Supreme Court.

To start with, it is first and foremost most explicitly stated at the outset that, “Sometimes small gestures can have unexpected consequences. Major initiatives practically guarantee them. In our time, few pieces of federal legislation rank in significance with the Civil Rights Act of 1964. There, in Title VII, Congress outlawed discrimination in the workplace on the basis of race, color, religion, sex or national origin. Today, we must decide whether an employer can fire someone simply for being homosexual or transgender. The answer is clear. 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.”

As it turned out, it is then clarified in the next para that, “Few facts are needed to appreciate the legal question we face. Each of the three cases before us started the same way: An employer fired a long-time employee shortly after the employee revealed that he or she is homosexual or transgender – and allegedly for no reason other than the employee’s homosexuality or transgender status.”

To say the least, it is then mentioned in this judgment about the different cases of discrimination that, “Gerald Bostock worked for Clayton County, Georgia, as a child welfare advocate. Under his leadership, the county won national awards for its work. After a decade with the county, Mr. Bostock began participating in a gay recreational softball league. Not long after that, influential members of the community allegedly made disparaging comments about Mr. Bostock’s sexual orientation and participation in the league. Soon, he was fired for conduct “unbecoming” a county employee. Donald Zarda worked as a skydiving instructor at Altitude Express in New York. After several seasons with the company, Mr. Zarda mentioned that he was gay and, days later, was fired.”

While continuing in the same vein, it is then envisaged that, “Aimee Stephens worked at R.G. & G.R. Harris Funeral Homes in Garden City, Michigan. When she got the job, Ms. Stephens presented as a male. But two years into her service with the company, she began treatment for despair and loneliness. Ultimately, clinicians diagnosed her with gender dysphoria and recommended that she begin living as a woman. In her sixth year with the company, Ms. Stephens wrote a letter to her employer explaining that she planned to “live and work full-time as a woman” after she returned from an upcoming vacation. The funeral home fired her before she left telling her “this is not going to work out”.”

Importantly, the next important point that must be stated here of this notable judgment is this: “From the ordinary public meaning of the statute’s language at the time of the law’s adoption, a straight forward rule emerges: An employer violates Title VII when it intentionally fires an individual employee based in part on sex. It doesn’t matter if other factors besides the plaintiff’s sex contributed to the decision. And it doesn’t matter if the employer treated women as a group the same when compared to men as a group. If the employer intentionally relies in part on an individual employee’s sex when deciding to discharge the employee – put differently, if changing the employee’s sex would have yielded a different choice by the employer – a statutory violation has occurred. Title VII’s message is “simple but momentous”: An individual employee’s sex is “not relevant to the selection, evaluation, or compensation of employees.” Price Waterhouse v. Hopkins, 490 U.S. 228, 239 (1989) (plurality opinion).”

More importantly, it is then rightly stated next in this commendable judgment that, “The statute’s message for our cases is equally simple and momentous: An individual’s homosexuality or transgender status is not relevant to employment decisions. That’s because it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex. Consider, for example, an employer with two employees, both of whom are attracted to men. The two individuals are, to the employer’s mind, materially identical in all respects, except that one is a man and the other a woman. If the employer fires the male employee for no reason other than the fact he is attracted to men, the employer discriminates against him for traits or actions it tolerates in his female colleague. Put differently, the employer intentionally singles out an employee to fire based in part on the employee’s sex, and the affected employee’s sex is a but-for cause of his discharge. Or taken an employer who fires a transgender person who was identified as a male at birth but who now identifies as a female. If the employer retains an otherwise identical employee who was identified as female at birth, the employer intentionally penalizes a person identified as male at birth for traits or actions that it tolerates in an employee identified as female at birth. Again the individual employee’s sex plays an unmistakable and impermissible role in the discharge decision.”

Equally importantly, it is then also held that, “When an employer fires an employee for being homosexual or transgender, it necessarily and intentionally discriminates against that individual in part because of sex. And that is all Title VII has ever demanded to establish liability. 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. An employer who fires a woman, Hannah, because she is insufficiently feminine and also fires a man, Bob, for being insufficiently masculine may treat men and women as groups more or less equally. But in both cases the employer fires an individual in part because of sex. Instead of avoiding Title VII exposure, this employer doubles it.”

Most importantly, in the concluding part, it is very rightly underscored that, “Ours is a society of written laws. Judges are not free to overlook plain statutory commands on the strength of nothing more than suppositions about intentions or guesswork about expectations. In Title VII, Congress adopted broad language making it illegal for an employer to rely on an employee’s sex when deciding to fire that employee. We do not hesitate to recognize today a necessary consequence of that legislative choice: An employer who fires an individual merely for being gay or transgender defies the law.”

No doubt, the US Supreme Court by this latest, landmark and extremely laudable judgment has prima facie made it absolutely clear that employees cannot be fired merely for being homosexual or transgender. All the employers must always adhere to this extremely commendable judgment in totality. The employers must refrain from indulging in discrimination against any employee just for being homosexual or transgender as it has got just nothing to do with the job at hand and every person has a right to be either homosexual or transgender and no one can have an unfettered right to interfere in that! There can be no denying or disputing it!

Sanjeev Sirohi

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