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.
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Guides. Our commentary on the Employment sector in Puerto Rico provides professional insight on local law and regulations, legal risks for employers doing business in Puerto Rico, best practices, cross-jurisdictional issues, and more. Read our chapter for more commentary on the legal issues surrounding employment in Puerto Rico.
On August 1, 2023, the United States Citizenship and Immigration Services (“USCIS”) published a revised version of Form I-9. After October 31, 2023, all employers must use the latest version of Form I-9 to verify the identity and employment eligibility of all new hires, and/or for the reverification of expiring employment authorization of current employees (if applicable). After October 31, 2023, previous versions of Form I-9 will not be accepted, and failure to use the revised Form I-9 may result in penalties. A revised Spanish Form I-9 dated August 1, 2023 is available for use in Puerto Rico only.
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