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From Claudia’s Corner: Discrimination Against Gay & Transgender Employees is Unlawful Sex Discrimination

Attorney Claudia A. ReisIn a huge victory to the LGBTQ community and its advocates, the Supreme Court of the United States (the Court or SCOTUS) made clear that it is unlawful for employers to fire employees simply because they are gay or transgender under Title VII.  The Court reached that conclusion by finding that discrimination against gay or transgender employees necessarily implicates sex and sex discrimination is barred by Title VII. Specifically, the Court emphasized that “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”

The SCOTUS decision in Bostock v. Clayton County, which was written by Justice Gorsuch, provides various examples to explain how discrimination against gay and transgender employees is unlawful sex discrimination.  One such example is that if two employees, one a man and woman, are both attracted to men but only the male employee is fired for that attraction, that male employee would have been discriminated against because of his sex.  Why?  Well, because, in the simplest terms, if he were a woman, he wouldn’t have been fired.  Similarly, if an employer fires an employee who now identifies as a woman despite having been assigned the gender of male at birth while that employer does not fire an employee who was identified at birth as well as now as a woman, the employer would be penalizing “a person identified as male at birth for traits or actions that it tolerates in an employee identified as female at birth.”  The last example provided by the Court involves an employer who invites employees’ spouses to the annual holiday party.  Two employees bring their female spouse named Susan but one of those employees is a man while the other is a woman.  If the employer fires the female employee because she brought her wife Susan to the party but not the male employee for bringing his wife Susan, the employer would be treating the two employees differently on the basis of their sex.  In each of the examples, “the individual employee’s sex plays an unmistakable and impermissible role in the discharge decision.”

Although a significant victory for the LGBTQ community, this case will probably not be the last word on the workplace rights of gay, transgender, and other straight non-cis employees. That is because at the very end of the decision, Judge Gorsuch made clear that the decision does not address the interaction of employers’ religious convictions or free speech rights and Title VII nor does it interpret the impact of the Religious Freedom Restoration Act of 1993 on Title VII.

What impact will this decision have on New Jersey employees?  Probably not much because our legislature made it illegal to discriminate against gay employees in 1991 and transgender employees in 2006 when sexual orientation and gender identity and expression were added to the New Jersey Law Against Discrimination’s list of protected characteristics.

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