By Meghan Droste, July 15, 2020

You’ve probably heard the phrase “model employer” in connection with the federal government.  Although the phrase comes from the Rehabilitation Act, the idea is now broader than just the area of disability rights — the federal government should set an example for all other employers when it comes to being an inclusive employer and in rooting out harassment and discrimination.

The federal government has been just that in the area of LGBTQ rights. The EEOC ruled in 2012 that Title VII prohibits discrimination on the basis of gender identity, and in 2015 that it prohibits discrimination on the basis of sexual orientation. Last month, the Supreme Court agreed.  Following the Court’s decision in Bostock v. Clayton County, Georgia, private and public sector employees across the country now have the same protections federal employees have had for years.

The Court’s decision in Bostock was the result of three consolidated cases: Bostock and Altitude Express, Inc. v. Zarda addressed the question of whether Title VII prohibits discrimination on the basis of sexual orientation; R.G. & G.R. Harris Funeral Home v. EEOC focused on whether gender identity discrimination is prohibited. The Court concluded that discrimination on the basis of sexual orientation or gender identity is a form of sex discrimination and, therefore, is impermissible.

The Court’s decision turned on the “ordinary public meaning” of the word “sex” in Title VII.  Looking to the definition and usage of the word in 1964, the Court concluded that it referred to “biological distinctions between male and female.” From there, the Court found that “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”  As the Court illustrated in several examples, an employer cannot look to an employee’s sexual orientation or gender identity without taking into account the employee’s sex.  As a result, any employment action based on either sexual orientation or gender identity is inherently because of sex, and therefore is not permitted under Title VII.

The Court provided several examples to explain its point. In one that I found most helpful, the Court considered a company that has a policy firing gay or lesbian employees because of their sexual orientation. In the hypothetical, the company has a model employee with whom the company has no issues. The model employee then introduces a woman as the employee’s spouse at a company party. The question of whether the employer will fire the model employee turns on the employee’s sex. If the model employee is a man, the company will not take any action. If the model employee is a woman, the company will fire her based on its policy of not employing anyone who is a lesbian.  The Court noted that although the company’s intention is to fire the model employee because of the employee’s sexual orientation, the company will intentionally treat the employee worse because of her sex in order to achieve its goal.

The Bostock decision is great news for employees everywhere—now private and public sector employees enjoy the same protections, and federal sector employees know that their rights will not change or be undermined. Droste@FELTG.com

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