by Adam Henningsen & Mollie Mohan
On June 15, 2020, the U.S. Supreme Court ruled that the federal law prohibiting sex discrimination in the workplace also protects against discrimination based on sexual orientation and gender identity.
The Bostock v. Clayton County decision consolidated three separate cases that dealt with alleged discrimination in the workplace. In each case, the plaintiffs alleged that their employers fired them after learning of their sexual orientation or transgender status. The central question in each case was, does Title VII of the Civil Rights Act of 1964 provide homosexual and transgender employees protection from discrimination in the workplace? The answer, as the Court stated in the opening paragraph of its opinion, is unequivocally yes.
In a 6-3 decision, Justice Neil Gorsuch wrote for the majority that “sex” served as the reference point for bias based on sexual orientation or gender identity, and thus, sexual orientation and gender identity are protected traits under Title VII. The Court noted that, “If the employer fires the male employee for no reason other than the fact he is attracted to men, the employer discriminates against him for traits or actions it tolerates in his female colleague.”
In reaching this conclusion, the Court also held that Title VII’s statutory language necessitates finding certain acts by employers to be unlawful even when the acts in question were not literally “because of sex” but nevertheless involved the decision-maker’s consideration of sex. The Court reasoned that, in the context of sex discrimination, any time an employee’s “sex” is involved in a workplace decision, Title VII recognizes the decision as being unlawfully discriminatory.
What does the Court’s ruling mean for Missouri employers?
The Court’s decision means that employers subject to Title VII – including private employers and state/local governments with 15 or more employees – are now prohibited from discriminating against employees because of sexual orientation or gender identity. Employers should review their policies and practices (including discrimination training) to ensure that they comply with Title VII’s prohibition on discrimination on the basis of sex, sexual orientation, or gender identity.
Of note, Missouri’s state law prohibiting discrimination in the workplace (the Missouri Human Rights Act, “MHRA”) which applies to employers with six or more employees, does not explicitly prohibit discrimination in the workplace on the basis of sexual orientation and gender identity. However, the Missouri Supreme Court, in February of 2019, allowed both a sexual orientation discrimination claim and a gender identity discrimination claim asserted under the MHRA to survive dispositive motions. (See our analysis of those cases here). Moreover, numerous Missouri municipalities, cities, and counties already have ordinances that prohibit sexual orientation/gender identity discrimination, including St. Louis City; St. Louis County; Creve Coeur; University City; Olivette; Maplewood; Clayton; Richmond Heights; Kirkwood; Ferguson; Kirksville; Columbia; Kansas City; and Jackson County.
Considerations for religious organizations
The Supreme Court also noted there are special considerations for the application of Title VII to religious organizations, and the interplay between Title VII and the protections of religious liberty will be a question for future cases.
For example, under the “religious organization exception,” certain religious organizations are permitted to give employment preference to members of their own religion. This exception is limited, in that it only allows religious organizations to prefer to employ individuals who share their religion. The exception does not allow religious organizations otherwise to discriminate in employment on the basis of race, color, national origin, sex, age, or disability.
Additionally, under the “ministerial exception,” courts have held that certain employees generally cannot bring claims under the federal employment discrimination laws, including Title VII. This “ministerial exception” comes from the First Amendment principle that governmental regulation of church administration, including the appointment of ministers, impedes the free exercise of religion and constitutes impermissible government entanglement with church authority. This exception is also limited, in that it only applies to “ministers,” defined as employees who perform essentially religious functions.
The U.S. Supreme Court also recently heard a pair of cases involving these defenses to discrimination claims. We anticipate that the Court’s decision in those cases, which is expected to be released later this summer, will discuss how far the “religious organization exception” and the “ministerial exception” extend, particularly in light of the Court’s decision in Bostock.
If you have any questions regarding the impact of the Supreme Court’s decision in Bostock, please contact the employment attorneys at Tueth Keeney.
Labor and Employment – Tueth, Keeney, Cooper, Mohan & Jackstadt, P.C. has successfully represented a number of businesses, large and small, throughout the Midwest in labor and employment matters. Our broad range of experience includes employment discrimination litigation, wage-hour investigations, affirmative action revision plans development, INS audits, and a variety of traditional labor matters.
Adam Henningsen practices primarily in the areas of education law, labor and employment law, and civil litigation. Adam regularly works with school districts and individual administrators on matters including labor and employment, contracting, student discipline, special education, and state and federal regulation compliance. He has successfully represented school districts, charter schools, and other employers in State and Federal Court, as well as administrative agencies including the Equal Employment Opportunity Commission, the Missouri Commission on Human Rights, the Missouri Administrative Hearing Commission, and the United States Department of Education Office for Civil Rights. Prior to joining the firm, Adam practiced school law at a firm in Kansas City, Missouri.
Mollie G. Mohan practices primarily in the areas of labor & employment, litigation, and higher education. Mollie represents colleges, universities, and private employers in labor and employment matters. Prior to joining the firm, Mollie worked at a large-sized litigation firm in Saint Louis. While in law school, Mollie was a student law clerk to the Honorable Jean C. Hamilton of the United States District Court for the Eastern District of Missouri.