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Wednesday, July 8, 2020

NJ LGBTQ Employees, US Supreme Court, Bostock v. Clayton County

New Jersey employees were protected from gender identity and sexual orientation discrimination in employment prior to the recent landmark ruling of the US Supreme Court in Bostock v. Clayton County. The New Jersey Law Against Discrimination protects against all forms of sex discrimination in employment including gender identity and sexual orientation. Not all statutes in others states provided such protection. 

Prior to the U.S. Supreme Court ruling on June 15, 2020 in Bostock v. Clayton County, Federal Courts in different jurisdictions did not always expand the interpretation of “sex” under the Federal law, Title VII of the Civil Rights Act of 1964, to include sexual orientation or gender discrimination. Although Title VII prohibits discrimination in the workplace on the basis of sex, as well as race, color, religion, and national origin, Title VII does not specifically include gender identity or sexual orientation.

For Plaintiffs bringing a gender identity or sexual orientation discrimination claim under Federal law, whether they would prevail or not for a violation of the prohibition on sex discrimination, depending largely on what jurisdiction they were in, resulting in a split among the Federal Circuits.

Unlike some state employment discrimination statutes, Title VII does not expressly address sexual orientation or gender discrimination. Before this ruling, federal courts had disagreed whether Title VII’s prohibition of discrimination based on “sex” extended into those areas. The Supreme Court’s decision in Bostock conclusively answers that question, concluding gender identity and sexual orientation are both included in the definition of “sex”.

To listen to the US Supreme Court oral arguments in Bostock, click here.

History of Case:

In Bostock v. Clayton Cty., 140 S. Ct. 1731, the US Supreme Court consolidated three cases that were brought in different federal jurisdictions.

In two of the cases, it was alleged that the employer fired a long-time employee simply for being gay. In the third case, it was alleged the firing was due to the employee being transgender.

Gerald Bostock was an employee of Clayton County, Georgia. The County fired Gerald Bostock for conduct “unbecoming” a county employee shortly after he began participating in a gay recreational softball league. Shortly after he began participating in the league, influential members of the community allegedly made disparaging comments about Mr. Bostock’s sexual orientation and participation in the league. Soon, Clayton County fired him 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.

Aimee Stephens worked at R. G. & G. R. Harris Funeral Homes in Garden City, Michigan. Ms. Stephens presented as a male when she began the employment. 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. R. G. & G. R. Harris Funeral Homes  fired her before she left, telling her “this is not going to work out.”

The US Supreme Court held that an employer who fires an individual merely for being gay or transgender violates Title VII.

Justice Gorsuch in laying out the opinion of the Court, logically explained that from the ordinary public meaning of the Title VII ’s language at the time of its adoption, a straightforward 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.’ quoting from Price Waterhouse v. Hopkins, 490 U. S. 228, 239, 109 S. Ct. 1775, 104 L. Ed. 2d 268 (1989) (plurality opinion).

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 take 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.

That distinguishes these cases from countless others where Title VII has nothing to say. Take an employer who fires a female employee for tardiness or incompetence or simply supporting the wrong sports team. Assuming the employer would not have tolerated the same trait in a man, Title VII stands silent. But unlike any of these other traits or actions, homosexuality and transgender status are inextricably bound up with sex. Not because homosexuality or transgender status are related to sex in some vague sense or because discrimination on these bases has some disparate impact on one sex or another, but because to discriminate on these grounds requires an employer to intentionally treat individual employees differently because of their sex.

Nor does it matter that, when an employer treats one employee worse because of that individual’s sex, other factors may contribute to the decision. Consider an employer with a policy of firing any woman he discovers to be a Yankees fan. Carrying out that rule because an employee is a woman and a fan of the Yankees is a firing “because of sex” if the employer would have tolerated the same allegiance in a male employee. Likewise, here. When an employer fires an employee because she is homosexual or transgender, two causal factors may be in play—both the individual’s sex and something else (the sex to which the individual is attracted or with which the individual identifies). But Title VII doesn’t care. If an employer would not have discharged an employee but for that individual’s sex, the statute’s causation standard is met, and liability may attach.”

In New Jersey, sex discrimination, including gender orientation, sexual orientation, and other types of discrimination Plaintiff’s fare better in State Court under the New Jersey Law Against Discrimination, then they do under the Federal Statute.  Also, a sex, gender orientation, or sexual orientation discrimination Plaintiff can file a lawsuit directly in State Court without first having to exhaust administrative requirements required by Title VII.

What You Can Do

I am an aggressive and compassionate employment law attorney who is successful in representing LGBTQ executive and mid-level employees and recovering money for their being subjected to discrimination. I have successfully represented LGBTQ employees who were either terminated or forced out of their employment because of the bias against them and was successful in obtaining monetary compensation for them.

If you are being subjected to such unlawful workplace discrimination, contact Hope A. Lang, Attorney at Law today for a free consultation.

New Jersey employment attorney, Hope A. Lang, Attorney at Law serves clients throughout the state, including Bergen, Middlesex, Essex, Hudson, Monmouth, Ocean, Union, Camden, Passaic, and Morris Counties with locations in Southern, Central, Western and Northern NJ to meet with clients.


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