On June 15, 2020, the U.S. Supreme Court ruled that Title VII of the Civil Rights Act of 1964 prohibits employers from making adverse employment decisions on the basis of sexual orientation and gender identity. While the decision in Bostock v. Clayton County, Georgia represents a significant reinterpretation of Title VII’s prohibition on discrimination “because of sex,” it may not necessarily impact current employment practices in Illinois. The Court held that “because of sex” encompasses sexual orientation and gender identity in its 6-to-3 decision.
The Court reviewed three cases in its Bostock decision, those of Gerald Bostock, Donald Zarda and Aimee Stephens. These employees were each fired shortly after their employers learned that they identified as gay or transgender, allegedly solely on the basis of their sexual orientation or gender identity. Gerald Bostock, a child welfare advocate for Clayton County, Georgia, was fired after joining a gay recreational softball league for “conduct ‘unbecoming’ [of] a county employee.” Donald Zarda, a skydiving instructor at Altitude Express in New York, was fired within days of stating that he was gay. Aimee Stephens, an employee at R. G. & G. R. Harris Funeral Homes in Garden City, Michigan, was fired after declaring to the funeral home a new status as a transgender woman, to which the funeral home replied, “this is not going to work out.”
The Eleventh Circuit held that Title VII did not prohibit employers from firing employees on the basis of sexual orientation, and dismissed Mr. Bostock’s suit as a matter of law. In contrast, the Second and Sixth Circuits decided that sexual orientation and gender identity discrimination violated Title VII and allowed Mr. Zarda and Ms. Stephens’s suits to proceed. “An employer who fires an individual merely for being gay or transgender defies the law,” Justice Neil M. Gorsuch wrote for the majority in the Supreme Court’s 6-to-3 ruling. In overturning the Eleventh Circuit and affirming the Second and Sixth Circuits, the Court stated that an employer who intentionally penalizes an employee on the basis of sexual orientation or gender identity violates Title VII because discrimination on these grounds requires an employer to intentionally treat individual employees differently because of their sex. The Court further stated that an employer could not avoid liability for sex discrimination “by citing some other factor that contributed to its challenged employment decision.”
Illinois already prohibits employment discrimination on the basis of sexual orientation and gender identity under state law. In a 2005 amendment effective January 1, 2006, the Illinois General Assembly added “sexual orientation” to the list of protected groups under the Illinois Human Rights Act. 775 ILCS 5/1-102(A). The definition of sexual orientation explicitly includes gender identity. 775 ILCS 5/1-103(O-1). Further, the Seventh Circuit became the first court of appeals to hold that Title VII prohibits adverse employment decisions on the basis of sexual orientation in Hively v. Ivy Tech Community College of Indiana in 2017, reasoning that “a policy that discriminates on the basis of sexual orientation…is based on assumptions about the proper behavior for someone of a given sex.”
Certain employers may be able to claim exemptions from Title VII’s requirements based on their rights to religious liberty under the federal Religious Freedom Restoration Act (RFRA) or the First Amendment. “Because RFRA operates as a kind of super statute, displacing the normal operation of other federal laws, it might supersede Title VII’s commands in appropriate cases,” Gorsuch wrote. “But how these doctrines protecting religious liberty interact with Title VII are questions for future cases.”
Employers who cannot rely on such an exemption should continue to train their employees regarding the prohibited bases for employment decisions (a list which continues to include sexual orientation and gender identity) and ensure that their employee handbooks and other policy statements are up to date. For more information regarding the Bostock decision, workplace anti-discrimination policies and practices, or religious liberty concerns, please contact a member of our labor and employment practice team:
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