By: Lisa Edison-Smith

On June 15, 2020, in Bostock v. Clayton County, the U.S. Supreme Court ruled the federal civil rights law ban on employment discrimination “based on sex” applies to discrimination against individuals based on their sexual orientation or gender identity.  In a surprise 6-3 decision written by conservative Justice Neil Gorsuch, the Court announced that Title VII is clear:  “An employer who fires an individual merely for being gay or transgender defies the law.”

Background – The law in question is Title VII of the Civil Rights Act of 1964.  Title VII, signed by President Lyndon Johnson, prohibits discrimination in employment based on race, religion, color, national origin, and sex.  But, what does discrimination on “the basis of sex” really mean?

The Bostock case was a consolidation of three cases, two involving individuals terminated from employment because they were gay.  Gerald Bostock was fired after a decade as a child welfare advocate in Georgia after he joined a gay softball league.  Donald Zarda was terminated as a skydiving instructor after he mentioned he was gay.  A third plaintiff, Aimee Stephens presented as male when hired by Harris Funeral Homes, but was fired when she announced she had been diagnosed with gender dysphoria and advised to begin living as a woman.  The lower courts hearing the cases disagreed on whether Title VII’s prohibition on discrimination based on sex extended to homosexuals or transgender individuals.  Thus, the Supreme Court heard the case to provide consistency between the courts.

Homosexuality or Transgender Status Irrelevant – Justice Gorsuch first repeated the Court’s prior holdings that under Title VII, an employee’s sex “is not relevant to the selection, evaluation, or compensation of employees.”  Justice Gorsuch went on, stating that the application of Title VII to homosexual or transgender individuals is “equally simple and momentous,” stating “An individual’s homosexuality or transgender status is not relevant to employment decisions.”

Although the defendants argued vigorously that Congress could not have intended to cover LGBTQ individuals under Title VII in 1964, when the law was passed, Justice Gorsuch was unfaltering. According to him, when the simple text of the statute provides the answer to the question, there is no reason to look to the original intent of the legislation.

Justice Gorsuch provided simple illustrations of how treating homosexuals and transgender individuals differently is inherently based on sex.  For example, a male employee who brings a male spouse to a holiday party is fired.  A female employee who brings a male spouse is not fired.  The distinction is based on the sex of the individual.  The individual’s homosexuality is a secondary issue, but the primary difference is the sex of the individual.  The same analysis applies to transgender individuals.  A transgender female, such as Stephens, was fired because she intended to dress and present as a female.  Obviously, a female employee would not be penalized for the same behavior. Thus, sex “plays a necessary and undisguisable role in the decision [in such cases], exactly what Title VII forbids.”

What this Means for North Dakota and Minnesota Employers – Minnesota has long recognized sexual orientation and gender identity as protected classes under the Minnesota Human Rights Act.  Thus, in Minnesota, Bostock does not change the basic legal landscape for employers.

For North Dakota employers, Bostock confirms that employers subject to Title VII (those with 15 or more employees) cannot discriminate based on sexual orientation or gender identity, including transgender status.  Further, Commissioner Erica Thunder of the North Dakota Department of Labor and Human Rights has confirmed that her office interprets the North Dakota Human Rights Act harmonious with federal law.  Thus, employers of any size may not discriminate based on sexual orientation or gender identity in North Dakota.  Employers who fail to hire homosexual or transgender candidates or treat them differently based on sex may be subject not only to administrative complaints, but also to expensive lawsuits. 

Tips for Employers – The Society for Human Resource Management (SHRM®) provides a helpful checklist for employers to eliminate LGBTQ bias and comply with Title VII.  The organization’s suggestions include reviewing and updating all policies to ensure that “sexual orientation and gender identity or expression” are included expressly in employee handbooks and policies as protected classes.   In addition, benefits and hiring practices should be reviewed, as well as workplace rules.  Policies that assume traditional gender roles and heterosexual relationships should be revised.  In addition, the key is training not only supervisors, but all employees on the law, the employer’s expectations and commitment to following the law, and providing a respectful, welcoming workplace. 

“An individual’s homosexuality or transgender status is not relevant to employment decisions.” – Justice Neil Gorsuch

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