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SCOTUS holds LGBTQ status is protected within Title VII’s meaning of “sex”

The Supreme Court held that LGBTQ status is already protected within Title VII’s meaning of the word “sex.”

Today, we must decide whether an employer can fire someone simply for being homosexual or transgender. The answer is clear. 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.

In authoring the majority opinion, Justice Gorsuch observed that the word “sex” would likely not have been read that way by the drafters of Title VII in 1964, but the majority held that the term is unambiguous as drafted; according to well-established precedent, resort to legislative history is not permitted when a statutory text is unambiguous.

Those who adopted the Civil Rights Act might not have anticipated their work would lead to this particular result. Likely, they weren’t thinking about many of the Act’s consequences that have become apparent over the years, including its prohibition against discrimination on the basis of motherhood or its ban on the sexual harassment of male employees. But the limits of the drafters’ imagination supply no reason to ignore the law’s demands. When the express terms of a statute give us one answer and extratextual considerations suggest another, it’s no contest. Only the written word is the law, and all persons are entitled to its benefit.

The majority confirmed that, while Title VII’s “sex” protections directly protect such traits/classes, plaintiffs may also assert sex-stereotyping claims related to such traits/classes, just as plaintiffs can assert sex-stereotyping claims based on male-female cys-gendered status.

To be sure, there may be cases in which a gay, lesbian, or transgender individual can make a claim like the one in Price Waterhouse. That is, there may be cases where traits or behaviors that some people associate with gays, lesbians, or transgender individuals are tolerated or valued in persons of one biological sex but not the other. But that is a different matter.

Gossip, sexual harassment and hostile work environments

A recent Fourth Circuit decision reminds employers to be vigilant in preventing sexually hostile work environments in the workplace. Even gossip can lead to such claims.

In this case, the plaintiff alleged that, when she received a series of promotions, her male co-worker started a rumor that she’d had an affair with a manager. She alleged that other co-workers, including males, continued to spread the rumor. She alleged that, as a result of the rumor, she was frozen out of future promotions and meetings.

The trial court dismissed her case saying she had failed to allege this rumor was due to her being a woman and further that she’d failed to allege it was so bad as to be “severe or pervasive” as required for a hostile work environment claim. The Fourth Circuit reversed on both grounds.

First, the Fourth Circuit held that the rumor was precisely due to her gender. It was sexual in nature and, by essentially asserting that she, as a woman, would not have been promoted otherwise, it was also unlawful sex stereotyping.

Thus, the dichotomy that RCSI, as well as the district court, purports to create between harassment “based on gender” and harassment based on “conduct” is not meaningful in this case because the conduct is also alleged to be gender-based. We conclude that, in overlooking this, the district court erred.

Next, the Fourth Circuit held the impact of the rumor was indeed “sever or pervasive” as required to prove a hostile work environment claim. It was more than “a few slights.” It wasn’t mere gossip in that, at points, it allegedly included “physical threatening.” It affected her work and, she claimed, even cost her the job.

Finally, the harassment interfered with Parker’s work. She was blamed for bringing the controversy to the workplace; she was excluded from an all-staff meeting; she was humiliated in front of coworkers; she was adversely affected in her ability to carry out management responsibility over her subordinates; she was restrained in where she could work, being told to stay away from the rumormonger; and she was told she had no future at RCSI because of the rumor. In addition, she alleges that her employment was terminated because of the rumor and, as stated by management, because of the rumormonger’s complaint. In short, RCSI’s management’s entire relationship with Parker, as well as Parker’s employment status, was changed substantially for the worse.

The case is a strong reminder to employers to prevent sexual harassment, even in the form of “mere” gossip. It should be noted though that as the court emphasized the case involved substantially more than what might be called simple gossip. Whether less substantial allegations would have warranted dismissal is for a later case to determine.

Source: Parker v. Reema Consulting Services, Inc., case no. 18-1206 (4th Cir. 2/8/19).