Discrimination on The Basis of Sexual Orientation

Can an employer fire an employee simply because the employee is gay? This has been something of an open question for decades.

In a landmark decision earlier this year, the U.S. Supreme Court answered the question in the negative. The court ruled that Title VII of the Civil Rights Act of 1964 prohibits workplace discrimination on the basis of sexual orientation and gender identity.

Protected Classes

For decades, federal and state laws, as well as some local ordinances have prohibited certain types of discrimination in the workplace. These include discrimination on the basis of race, sex, religion, age, disability and national origin. For the purposes of employment law, these categories are sometimes known as protected classes.

The various anti-discrimination laws differ in their language, but for the most part they hinge upon the employer’s intention when taking an action against an employee, such as termination, refusal to hire, refusal to promote, and so on. If the employer had a legitimate business reason for taking the action, then the action was not unlawful

Consider this example. Pia claims she was fired due to unlawful discrimination on the basis of her religion, a protected class. To prevail in her claim, Pia must show that her employer fired her because of her religion, and not for some other reason. If her former employer can show that they fired Pia because she was making too many mistakes at work, Pia may not be able to prevail.

Bostock v. Clayton County

In recent years, employers, workers, activists and others have asked lawmakers and courts to clarify whether the law should prohibit workplace discrimination on the basis of sexual orientation and gender identity. Several states and city governments have responded by passing new laws and ordinances prohibiting such discrimination. However, this type of workplace discrimination was legal in most parts of the United States

This summer, the Supreme Court changed this with its decision in the case Bostock v. Clayton County. The court consolidated several appellate cases for its decision, including one Georgia case in which a worker was terminated for being gay. In a 6-3 decision, the court ruled that this type of discrimination violates the Civil Rights Act’s prohibition on discrimination on the basis of sex.

This does not mean the court explicitly created new protected classes for sexual orientation and gender identity. Rather, the court found that these types of discrimination are inextricably linked to discrimination on the basis of sex.

For example, imagine Pia is fired because her employer finds out she is in a relationship with a woman. The employer also learns that another employee, Peter, is in a relationship with another woman. However, the employer takes no action against Peter.

The employer does not object to a male employee having a relationship with a woman, but does object to Pia having a relationship with a woman. Therefore, the employer’s discrimination is based on Pia’s sex. Discrimination on the basis of sex is prohibited.

Gathering Evidence

For plaintiffs in discrimination claims, perhaps the hardest part of proving their case is establishing evidence that the discrimination was solely on the basis of their protected class. Attorneys can help workers establish the evidence they need to make their case, but workers need to get started gathering this evidence as soon as they can.