Discrimination on the basis of sexual orientation and gender prohibited in the US
The U.S. Supreme Court has recently ruled that discrimination on the basis of sexual orientation or gender identity at work, is prohibited under federal civil rights law.
The court was dealing with the cases of two gay men and one transgender woman, who were fired from their jobs and who sued their employers alleging discrimination. One of the employees, Gerald Bostock said he was dismissed in 2013 for unspecified “unbecoming conduct” after his employer learned he had joined a gay softball league. Another, Donald Zarda was fired in 2010 after a customer complained that he had come out to her as gay. The third, transgender Aimee Stephens, was fired from her job of seven years after telling her boss that she planned to transition. Unfortunately Aimee Stephens died last month from kidney disease and Donald Zarda died in a 2014 accident.
The decision is probably the most significant affirmation of LGBT rights in the United States since the legalisation of same-sex marriage in 2015.
While the case is historic for its protections granted to LGBT employees, it was also historic for how the opinion was granted. While the case was argued months before the coronavirus struck the United States, moving the Supreme Court’s oral arguments to a virtual setting, the decision was announced in a virtual format.
In the United States, Title VII of the 1964 Civil Rights Act prohibits discrimination in the workplace on the basis of race, religion, national origin and sex.
Before this recent decision, LGBT discrimination in employment was still technically legal in much of the US, a country where less than half the states have laws explicitly prohibiting workplace discrimination on the basis of sexual orientation or gender identity.
The judgment explained that an employer who dismisses an individual merely for being gay or transgender is unlawful.
The reasoning however is somewhat contrived and reflects still an unwillingness to make an absolute statement in support of the LGBT community. The question for the court was the meaning of a statute, Title VII of the Civil Rights Act of 1964, which bars employment discrimination based on race, religion, national origin and sex. The court had to decide whether that last prohibition — discrimination “because of sex” — applies to gay and transgender workers.
The court decided that it did and reasoned that it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex. Essentially however, the judges held in the employee’s favour on grounds that they had been discriminated because of their sex, and hence that act was already prohibited by the law. This means that their ruling does not expressly state that those are separate characteristics that are to be protected – which is the case in the UK.
This approach does seem to redefine the term ‘sex’ so that ‘sex’ also means ‘gender identity’. It is not hard to anticipate that this could create uncertainty, particularly in places where gender identity could create practical issues such as in sport; sex-segregated toilets; gyms; prisons or women’s shelters.
There are many who also think that the court has gone beyond their powers with their interpretation in this case.
Interestingly, the dissenting judgements said that legislation should be passed to deal with this question instead of seeking to do so by way of a Supreme Court decision. Their argument was that the question is not whether discrimination because of sexual orientation or gender identity should be outlawed, but whether it has been prohibited by statute already, which they said it had not. In May 2019, the House of Representatives passed the Equality Act which would amend Title VII to explicitly include sexual orientation and gender identity as protected characteristics in the workplace. However, it has not been taken up by the Republican-controlled Senate or supported by President Trump.
Legally, this is a hugely important decision. It gives workplace protection to millions of people across the US.The decision will allow people who say they were discriminated against in the workplace based on their sexual orientation or gender identity to file a claim, just as people claiming race and sex discrimination may.
However, the decision affirms what, in my view should not have even been a decision to be debated: that LGBT Americans should be able to work without fear of losing their jobs because of who they are.
Although the decision is correct, new legislation ought to be drafted to enshrine the protection, and preferably to follow English law and identify sexual orientation and gender identity as separate, standalone characteristics to be protected by law. However, this remains unlikely if we consider that, in his first reaction to the ruling, President Trump said, “They’ve ruled, and we live with the decision…We live with the decision of the Supreme Court”. Hardly supportive of this huge step forward in equality in the US.
This is in America, so what is the relevance here?
For business owners and employees in England, it seems shocking that this type of judgement has been hailed as a landmark, given the rights and freedoms we enjoy in the UK..
It is disappointing to realise how the change was only as a result of individuals and their families pushing for justice; and that it was not already supported in law by legislation, at least clearly enough to resolve the dispute earlier.
It is also shocking to think this treatment was essentially justified until now and really does highlight the wide protection our current employment and Equality legislation provides for employees in the UK.
In the UK, the Equality Act 2010 prohibits discrimination on grounds of Gender Reassignment and Sexual orientation, and these are part of the nine separate protected characteristics covered by the legislation.
Of course, having it in legislation does not mean examples of discrimination do not occur – they unfortunately do and can be devastating on the victims. Further, the protection and rights of different sections of our community are still divisive and controversial to many, and so we cannot look at America and be totally happy with our position.
Nevertheless, for employers, an equal opportunities policy can help to set minimum standards of behaviour and reduce the risk of legal action. More importantly, you must undertake training and communicate with and promote to your staff, principles of equality and diversity.
Of course, unfortunately two of the employees did not survive to see their victory, but both are now being hailed as heroes for the LGBTQ community in the US.
Collectively it is our responsibility to ensure that these behaviours do not happen in the workplace and that the world of work can be a safe and enjoyable environment for everyone.
This article was written and researched by Albert Bargery, Solicitor at our Isle of Wight Office. Albert advises employers and employees on the Isle of Wight and throughout the UK.
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