On June 15, 2020, in a landmark decision, the United States Supreme Court (“Supreme Court”) held in the case of Bostock v. Clayton County, that employers cannot take adverse employment actions against employees on the basis of their sexual orientation or gender identity. The Court’s opinion, authored by Justice Neil Gorsuch, states succinctly,
“Today, we must decide whether an employer can fire someone simply for being homosexual or transgender. The answer is clear. An employer who fires 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.” Bostock, at p. 2.
This decision rules on a trio of cases argued before the Supreme Court in October 2019. In each case, the employer terminated a long-time employee shortly after the employee revealed that they were homosexual or transgender, and for no other reason than the employee’s affirmation of sexual orientation or gender identity. In its opinion, the Supreme Court determined that Title VII of the Civil Rights Act of 1964 (“Title VII”) forbids employers from taking adverse employment actions against their employees because of their status as homosexual or transgender persons because to discriminate on these grounds requires an employer to intentionally treat individual employees differently because of their sex, which has always been prohibited by Title VII.
The Court rejected the employers’ argument that they could discriminate against homosexual and transgender persons without ever learning their sex, indicating that “[b]y discriminating against homosexuals, the employer intentionally penalizes men for being attracted to men and women for being attracted to women. By discriminating against transgender persons, the employer unavoidably discriminates against persons with one sex identified at birth and another today. Any way you slice it, the employer intentionally refuses to hire applicants in part because of the affected individuals’ sex, even if it never learns any applicant’s sex.” Bostock, at p.18-19.
The Court also rejected the employers’ contention that discrimination against homosexual and transgender persons was not prohibited because it was not specifically addressed in Title VII. The Court wisely noted that “[a]s enacted, Title VII prohibits all forms of discrimination because of sex, however they may manifest themselves or whatever other labels might attach to them.” Bostock, at p. 19-20. Similarly, the Court declined to resort to Title VII’s legislative history, stating that the employer’s argument in this regard intended to displace the plain meaning of the law in favor of something lying beyond it.
Finally, the Court declined to take up the employers’ arguments regarding the “unintended consequences” of applying the clear language of the law on this issue, noting that when it comes to statutory interpretation, its role is limited to applying the law’s demands as faithfully as it can in the cases that come before it. In so doing, the Court recognized that other issues, such as sex-segregated bathrooms and locker rooms, and dress codes, may become unsustainable after this decision, but are not properly before the Court today.
The Court pointed out that while certain employers may worry that complying with Title VII’s requirements may cause them to violate their religious convictions, concerns that Title VII will intersect with religious liberties are not new. The Court referenced the 1993 Religious Freedom Restoration Act, which prohibits the federal government from substantially burdening a person’s exercise of religion unless it demonstrates that doing so both furthers a compelling governmental interest and represents the least restrictive means of furthering that interest, as a “super statute” that sometimes “displaces” the normal operation of anti-discrimination statues. As such, it may provide defenses to employers who object, on religious grounds, to hiring homosexual and transgender individuals. That being said, the Court recognized that no religious liberty argument was properly before it, and that the issue was a matter for future cases.
In conclusion, the Court held that “[i]n 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.” Bostock, at p. 33.
This case provides much-needed clarification as to the federal protections afforded to LGBTQ+ employees in the workplace. However, as noted by the Supreme Court in its Opinion, this case in no way resolves the array of other, related issues confronted by employers and employees in the workplace, and additional litigation is anticipated as this issue continues to develop and workplaces continue to evolve.
For further information or, if you should have any questions or comments, you can consult the Labor and Employment law team at AMG.
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This Court’s decision is not final yet. According to some government spokespersons, including the Secretary of Labor and Human Resources of Puerto Rico, they are analyzing the legal grounds that support the decision and will determine if the best course of action is to appeal. However, given this swift action and decisive language used by the Court, in addition to the good track record of the Board in PROMESA cases, it is likely that the decision will be upheld. Moreover, the least that is needed at this moment is further confusion and instability from a government appeal.
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During the 2020 election campaign in Puerto Rico, several candidates ran on a platform that included amending the Labor Reform Act of 2017, Law No. 4 of January 26, 2017 (“Law No. 4-2017”). Accordingly, it should come to no surprise that in the opening 2021 legislation session, there is a flurry of bills in the House intended to amend or repeal Law No. 4-2017.
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