Tag Archives: LGBTQ employees

U.S. Supreme Court Issues Landmark Decision Providing Discrimination Protections to LGBTQ Workers

Contributed by John Hayes, June 15, 2020

Judge’s Supreme Court gavel with law books

On June 15, 2020 the United States Supreme Court handed down a momentous decision ruling that Title VII of the Civil Rights Act of 1964 (“Title VII”) protects gay and transgender employees from workplace discrimination. The decision consolidated three cases where the employees were terminated from their jobs: two separate cases involving the terminations of gay employees; and one case involving the termination of a transgender employee.

The vote was 6 to 3, with Justice Neil M. Gorsuch writing the majority opinion. He was joined by Chief Justice John G. Roberts Jr. and Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan. Justice Alito wrote a dissent joined by Justice Thomas, and Justice Kavanaugh wrote a separate dissent.

Title VII bars employment discrimination based on race, religion, national origin and sex. The question for the justices was whether discrimination “because of sex” applies to gay and transgender workers. While most federal appeals courts interpreted Title VII to exclude sexual orientation discrimination, both the Second Circuit Court of Appeals (in New York) and the Seventh Circuit Court of Appeals (in Chicago) had previously ruled that discrimination based on sexual orientation is a form of sex discrimination. 

Writing for the majority, Justice Gorsuch stated:

An employer who fired 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.

… 

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.

Currently 22 states, including Illinois, have their own laws prohibiting job discrimination based on sexual orientation or gender identity.  While these laws remain in force, the Supreme Court’s ruling means federal law now provides similar protections for LGBTQ employees in the rest of the country.

Employers throughout the United States must now be aware that federal employment law (noting that Title VII covers only employers with 15 or more employees) prohibits discrimination against gay and transgender employees. The upside is that employers will no longer have to navigate inconsistent laws that vary from state to state and it will also likely make employee training easier and more consistent for employers operating in multiple states. Employers should update their discrimination and harassment policies to make sure gay and transgender employees are included in anti-discrimination protections.

It should also be noted that, for most employers, attempting to justify an employment action against gay or transgender employees on religious grounds will not be a successful avenue of defense.  The so-called “ministerial exemption” is very narrowly tailored to cover only churches and religious institutions, and applies only to employees performing a “ministerial” role within the institution.   

The takeaway for the vast majority of employers is that it is now crystal clear that Title VII’s prohibitions on discrimination based on sex include gay and transgender individuals. 

Missouri Supreme Court Opens New Door To LGBTQ Protections Under The Missouri Human Rights Act

Contributed by Brian Wacker, March 1, 2019

gavel and scales of justice

In a pair of rulings handed down on Tuesday, the Missouri Supreme Court expanded the reach of the Missouri Human Rights Act (“MHRA”) to encompass, under certain circumstances, LGBTQ individuals and additional types of evidence that can support MHRA discrimination and retaliation claims. Both cases – Lampley, et al v. Missouri Comm’n on Human Rights, et al and R.M.A., et al v. Blue Springs R-IV Sch. Dist., et al – should have a significant impact on employers in Missouri and how they evaluate the risks of employment actions against LGBTQ individuals moving forward.

By its text, the MHRA makes it unlawful for an employer to discriminate or retaliate against an employee with respect to compensation, terms of employment, or privileges of employment because of that employee’s race, color, religion, national origin, ancestry, disability, age, or sex. The MHRA does not expressly prohibit discrimination or retaliation based on an employee’s sexual orientation. Missouri courts have interpreted the MHRA accordingly.

In Lampley, the complaining employee was gay, but his sexual orientation was not the issue presented to the court. Instead, the plaintiff filed a Charge of Discrimination complaining that his employer, the Missouri Department of Social Services, subjected him to sex discrimination and retaliation, which is prohibited under the MHRA. The plaintiff asserted he was subjected to sex discrimination and harassment at work because “he does not exhibit the stereotypical attributes of how a male should appear and behave” and that other similarly-situated co-workers (i.e., non-gay co-workers who exhibited stereotypical attributes) were treated differently.  He also complained that he received lower performance evaluations at work as retaliation for his complaints about the alleged harassment. His co-worker and co-plaintiff also filed a Charge of Discrimination, complaining that she was discriminated against based on her association with him. 

The court in Lampley distinguished claims of discrimination based on sex-based characteristics from discrimination based on sexual orientation.  According to the court, the plaintiff’s sexual orientation was “merely incidental” to his sex discrimination complaint. Since the plaintiff did not actually allege he was discriminated against based on his sexual orientation, he could pursue his claims under the MHRA since “stereotyping” can give rise to an inference of discrimination against a member of a protected class, and is considered an unlawful hiring practice by the Commission’s own regulations. 

Whether intended or not, it is easy to see that the court’s ruling in Lampley now provides LGBTQ employees (and their attorneys) a clearer path to pursue discrimination and retaliation claims under state law, framing their claims as sex-based rather than sexual orientation-based. This ruling, coupled with the court’s contemporaneous ruling in R.M.A., in which the court vacated a lower court’s dismissal of a transgender student’s MHRA sex discrimination claim against his school for refusing him access to the boys’ restrooms and locker rooms, constitutes a clear victory for LGBTQ advocates.   

The Missouri Supreme Court sent a message on Tuesday with regard to LGBTQ rights. Employers in Missouri should take heed.