HR Professionals Magazine recently featured an article written by labor and employment attorneys X. Lightfoot and Jerry Sayre.
"Can an Employee be Fired for Being Gay or Transgender?" appears in Volume 9: Issue 11 of the publication. The article takes a closer look at the debate over Title VII and "whether employment discrimination based on sexual orientation or gender identity is prohibited employment discrimination 'because of sex.'"
More from the article:
The first case the Court heard was a consolidated matter involving cases from the Second Circuit Court of Appeals (Altitude Express Inc. v. Zarda) and the Eleventh Circuit Court of Appeals (Bostock v. Clayton County, Georgia), both of which involve men who claim they were fired from their jobs because of their sexual orientation.
Second Circuit: "Sex" is Necessarily a Factor in Sexual Orientation
The plaintiff in Zarda, Donald Zarda, was a skydiving instructor, who died in 2014. Prior to his death, a female client complained that Zarda inappropriately touched her during a jump. At some point, Zarda communicated to the client that he was a homosexual and "had an ex-husband," a practice that Zarda stated he often did with female clients to put them at ease. Altitude Express terminated Zarda in connection with the complaint; however, Zarda insisted he was fired solely because of his reference to his sexual orientation.
A federal district court granted summary judgment against Zarda, reasoning that his claim was not cognizable under Title VII. However, the Second Circuit reversed, with a majority of the court believing that sexual orientation discrimination is motivated by sex and, therefore, a "subset of sex discrimination." Thus, the Second Circuit concluded that federal law prohibits the firing of an employee on the basis of sexual orientation. Notably, the court reached this conclusion by taking a broad interpretation of the meaning of the text "because of sex." Specifically, the court reasoned that Title VII must protect sexual orientation "because sex is necessarily a factor in sexual orientation."
Eleventh Circuit: Discharge for Homosexuality Not Prohibited by Title VII
The Eleventh Circuit reached the opposite conclusion in Bostock v. Clayton County, Georgia. The plaintiff in Bostock, Gerald Bostock, was a Child Welfare Services Coordinator in Clayton County for over ten years. Although Bostock had received good performance reviews for his work, an internal audit was conducted on his program's funds. Bostock, who is gay, claimed the audit was a "pretext for discrimination against him because of his sexual orientation." During an advisory meeting, where Bostock's supervisor was present, at least one person criticized Bostock's sexual orientation and his participation in a gay softball league.
After his complaint was dismissed at the district court level, Bostock appealed to the Eleventh Circuit. Referring back to a 1979 decision, the Eleventh Circuit reasoned that it had already held that "[d]ischarge for homosexuality is not prohibited by Title VII." While hinting that this earlier ruling may have been wrong, the court held that it had no choice but to follow precedent and affirm the dismissal of Bostock's claim.
Sixth Circuit: Discrimination on the Basis of Transgender and Transitioning Status is Necessarily Discrimination on the Basis of Sex
The second case, Harris Funeral Homes v. EEOC, presents a similar question to Zarda and Bostock. That is, whether employees can be fired based on their status as transgender.
The case involves Aimee Stephens, who was a funeral director and embalmer for R.G. & G.R. Harris Funeral Homes. While working in this position for six years, Stephens dressed and presented herself as a man without issue. However, once Stephens communicated that she wanted to live and work as a woman before having sex-reassignment surgery, she was terminated. The owner of the funeral home, a devout Christian, admitted that Stephens was fired because she "was no longer going to represent himself as a man. He wanted to dress as a woman." The owner believed this change would violate "God's commands."
After Stephens filed a discrimination charge, the Equal Employment Opportunity Commission ("EEOC") pursued a complaint on her behalf against the funeral home. In ruling in favor of the employer, the district court reasoned that transgender status is not a protected trait under Title VII and that the Religious Freedom Restoration Act ("RFRA") precludes the EEOC from enforcing Title VII in this instance as doing so would substantially burden the employer's religious exercise. The Sixth Circuit reversed, holding that "discrimination on the basis of transgender and transitioning status is necessarily discrimination on the basis of sex." The court further ruled that the RFRA did not apply to protect the funeral home's actions because the funeral home was not a "religious institution," and Stephens was not a "ministerial employee" excluded from Title VII's protections.