On June 15, in a landmark 6 to 3 decision authored by U.S. Supreme Court Justice Neil Gorsuch, the United States Supreme Court held that employers shall not discriminate against an employee because he or she is homosexual or transgender.
The court considered three matters, similar in nature, where respective Circuit Courts of Appeal (2nd, 6th, and 11th) delivered different analyses and conclusions on the issue. As such, the Supreme Court consolidated these matters to resolve the conflict.
In all three matters, employers discriminated against employees — specifically fired them — based solely on the fact that the employee was a homosexual, and in one case, was hired as a male and thereafter notified her employer that she would be transitioning and living full-time as a female.
In the lead case on in the 11th Circuit, Bostock v. Clayton County, Georgia, the lower court held that the Title VII of the Civil Rights Act of 1964 did not specifically prohibit employers from discriminating against homosexual or transgender employees as, very simply, it did not list it among those classes.
Title VII makes it “unlawful . . . for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual . . . because of such individual’s race, color, religion, sex, or national origin.” As part of the 11th Circuit analyses, it made the distinction that “sex” when used in the Title VII context referred only to gender and not to sexual orientation. As such, employees were not protected by Title VII if they were homosexual or transgender.
The majority of the Supreme Court justices disagreed and held that the Act in 1964 included “sex” as a protected category. They agreed that the language written in 1964 may have originally contemplated only an employee’s gender. However, one can only consider one’s status as homosexual or transgender in the context of their sex. “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,” the Supreme Court ruled.
Title VII protects such employees from discrimination in the hiring, promotion and firing processes. The New Jersey Law Against Discrimination (NJLAD) has long protected these classes of individuals against discrimination in the workplace on the state level. As employers in New Jersey, school districts should take this opportunity to review their policies, procedures and training programs to insure compliance with the NJLAD and the federal protections now resulting from the Supreme Court’s ruling.
School districts are encouraged to review any questions on this decision with their board attorney or the NJSBA’s Department of Legal and Labor Relations at (609) 278-5254.