On June 15, 2020, the Supreme Court handed down Bostock v. Clayton County, Georgia, which decided three separate cases. Donald Zarda, a skydiving instructor, and Gerald Bostock, a child-welfare-services coordinator for Clayton County, Georgia, filed lawsuits in federal court alleging that they were fired because they were gay, which they claimed violated Title VII. Amiee Stephens, hired when she identified as a man, was terminated from her job at a funeral home after presenting to work as woman.  

Despite wide media press that Bostock is a “pro-LGBTQ” ruling, the decision makes no statement endorsing or criticizing the plaintiff’s identification as gay or transgender. Instead, the Court framed the case as one of straightforward statutory construction, finding that when an employer fires an employee “for being homosexual or transgender,” that employer “fires that person for traits or actions it would not have questioned in members of a different sex.” Thus, “sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”  

The Court further confirmed that under the plain terms of Title VII, an employer violates the federal statute  “when it intentionally fires an individual employee based in part on sex,” even if “other factors besides the plaintiff’s sex contributed to the decision” and even if “the employer treated women as a group the same when compared to men as a group.” All that matters, the Court stressed, is whether “changing the employee’s sex would have yielded a different choice by the employer.” As an example, the Court offered the case of an employer with two employees who are both attracted to men and are, for all intents and purposes, identical, but one is male and one is female. If the employer fires the male employee only because he is attracted to men, while keeping the female employee, the employer has violated Title VII, since “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against the individual based on sex.”  

While this sweeping ruling will have a significant cultural impact, and likely influence other precedents and laws going forward, the Court specifically refused to “prejudge” related issues, including “bathrooms, locker rooms, or anything else of the kind,” and left the door open that it is willing to consider claims by “religious institutions and its ministers” that certain accommodations of gay and transgender employees might “burden a person’s exercise of religion,” and, further, that the Religious Freedom Restoration Act 1993 “might supersede Title VII’s commands in appropriate cases.” 

In sum, the Bostock decision means that employers covered by Title VII (those employers with fifteen or more employees) could now face liability under Title VII for taking any employment actions on the basis of sexual orientation or transgender status or allowing harassment of any employees because of those characteristics. 

Practically speaking, in Massachusetts, Bostock does not significantly alter the legal protections afforded to gay and transgender employees. The Massachusetts anti-discrimination statute, Chapter 151B, prohibits discrimination in employment based on an individual’s gender identity and sexual orientation. It is an unlawful discriminatory practice in Massachusetts for an employer, or an employee or agent thereof, to discriminate against any employee or applicant for employment based upon that individual’s gender identity or sexual orientation with regard to recruitment, hiring, firing, discipline, promotion, wages, job assignments, training, benefits, and other terms and conditions of employment. Massachusetts law also explicitly prevents places of public accommodation from discriminating against, harassing, or providing different or inferior service to an individual based on gender identity or sexual orientation. Places of public accommodation are generally considered businesses that are open to and serve the public, including hotels, stores, restaurants, theaters, sports stadiums, health and sports clubs, hospitals, transportation services, museums, libraries, and parks. Massachusetts also protects the right of all people – including transgender people – to use sex-segregated facilities that are most consistent with their sincerely held gender identity. 

The Bostock decision also appears to affirm that that sex stereotyping (i.e. mistreatment because of an employee’s non-adherence to masculine or feminine standards) can help support a sex discrimination claim, noting that “an employer who fires both [a woman] and [a man] for failing to fulfill traditional sex stereotypes doubles rather than eliminates Title VII liability.”

The Court’s opinion also rejected the so-called “equal opportunity harasser” Title VII defense, which could allow an employer to avoid liability by showing that a supervisor’s conduct was equally abusive to everyone in the workplace without regard to sex. The Court noted that so long as the employer intentionally mistreats an individual homosexual or transgender employee in part because of that individual’s sex, it violates the law even if the employer is willing to subject all male and female homosexual or transgender employees to the same mistreatment.

As the federal agency that handles investigations into workplace discrimination, the EEOC has reported that it was already was receiving an increasing number of claims and pursuing increasing monetary awards in sexual orientation and gender identity discrimination cases. Thus, the EEOC will likely be emboldened to commence many more such lawsuits against employers subject to Title VII in federal court. The MCAD will certainly continue to enforce Massachusetts’ anti-discrimination statutes aggressively. 

For Massachusetts employers, Bostock is an important reminder of the following: 

  • Ensure that all non-discrimination, equal opportunity, non-harassment, and other employment-related policies to include a statement that discrimination and harassment on the basis of gender identity and sexual orientation is prohibited.
  • Ensure that personnel records, payroll records, email systems, and other documents reflect an employee’s stated name and gender identity, and ensure confidentiality of any prior documentation of an employee’s pre-transition name or gender marker.
  • Prohibit derogatory comments or jokes about transgender persons from employees, clients, vendors and any others, and promptly investigate and discipline persons who engage in discriminatory conduct.
  • Use names, pronouns, and gender-related terms appropriate to employee’s stated gender identity in communications with employee and with others. 
  • Avoid gender-specific dress codes and permit employees to dress in a manner consistent with their gender identity.
  • Provide the public and employees access to any sex-segregated facility, i.e. bathrooms, locker room facilities, based on the employee’s stated gender identity. 
  • Incorporate in diversity, anti-discrimination, and anti-harassment trainings information about transgender individuals and employees, whether or not there are currently transgender employees, or employees who have self-identified as transgender, at the workplace or in the place of public accommodation. 
  • Investigate and take appropriate remedial action when on notice of harassing or discriminatory conduct in the workplace.

If you have questions or would like to discuss any employment concerns, please contact Attorney Gabriel W. Bell, Attorney Michael P. Doherty, Attorney Andrew M. Kepple, or one of our other employment attorneys at 508-541-3000.

This blog is for informational purposes only.  It should not be considered legal advice.  All those who read this blog should seek the advice of a professional before taking action based upon any information provided herein.

 

© 2020 Doherty, Dugan, Cannon, Raymond & Weil, P.C.

Article by Attorney Gabriel W. Bell

Partner, Attorney

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