Court affirmed discrimination protections extend to sexual orientation, transgender status
Q: A supervisor wants to terminate an employee who the supervisor has promoted twice in the last four years and given excellent performance reviews to during that same time. About four weeks ago, the employee told us that he is homosexual and introduced his new spouse to co-workers during a Company Zoom gathering held to boost employee morale during COVID-19. As HR Manager for the Company, should I be concerned about potential discrimination if we proceed with termination?
A: Yes, before the Company takes action, it needs to consider potential liability under both federal and New Hampshire law.
On June 15, 2020, the United States Supreme Court held in Bostock v. Clayton County, Georgia, that it is a violation of Title VII's prohibition on discrimination based on “sex” to fire an individual because of that person's sexual orientation or transgender status. The long-awaited federal decision included three consolidated cases, all of which involved the termination of an employee close in time to the employee's disclosure of homosexual or transgender status to the employer. According to the Supreme Court, the employers did not challenge that the adverse actions taken were because the individual was homosexual or transgender.
In Bostock, Gerald Bostock worked for over a decade as a child welfare advocate for Clayton County in Georgia before he was fired for “conduct unbecoming” shortly after he began participating in a gay recreational softball league. In Altitude Express, Inc. v. Zarda, Donald Zarda worked for several seasons as a skydiving instructor before he was fired from his position after disclosing he was gay. In R.G. & G.R. Harris Funeral Homes, Inc. v. EEOC, Aimee Stephens, who had presented as a male upon hire, worked as a licensed funeral director and embalmer at the funeral home before she was fired after she told her company that she planned to live and work as a woman.
The Supreme Court took up the issue whether homosexuality or transgender status were included in the protections of federal law in those cases. In answering the questions in the affirmative, the Supreme Court looked to the plain text of the statute. It determined that someone's homosexuality or transgender status is so inextricably bound up with that person's “sex” that to make an employment decision based on these grounds requires an employer to intentionally treat the individual employees differently because of their “sex.” This is unlawful.
The Supreme Court explained, for example, that if a company has two employees who are married to men and one employee is female and the other is male, if the employer fires the male employee just because he is male and retains the female employee, the employer's action is based on “sex.” Likewise, if an employee who was identified as female at birth but now identifies as male is fired but the same action is not taken against an employee who was identified as male at birth, the employer has improperly taken the person's “sex” into account.
In other words, the company would not have discharged the employee but for that employee's sex. The Supreme Court left for another day the impact on the free exercise of religion and compliance with Title VII.
While these protections are new under federal law, New Hampshire's anti-discrimination law already prohibited discrimination in employment because of an employee's “sexual orientation” or “gender identity.” The added categories of "sexual orientation" and “gender identity” became effective in 1998 and 2018, respectively. Title VII applies to employers with 15 or more employees and New Hampshire's Law Against Discrimination, RSA 354-A, generally applies to employers with more than five employees.
Under New Hampshire's law, "sexual orientation" means "having or being perceived as having an orientation for heterosexuality, bisexuality, or homosexuality." "Gender identity" means “a person's gender-related identity, appearance, or behavior, whether or not that gender-related identity, appearance, or behavior is different from that traditionally associated with the person's physiology or assigned sex at birth.” Gender identity can be shown through “medical history, care or treatment of the gender-related identity, consistent and uniform assertion of the gender-related identity, or any other evidence that the gender-related identity is sincerely held as part of a person's core identity provided, however, that gender-related identity shall not be asserted for any improper purpose.”
In this specific situation, HR needs to investigate to ensure that the supervisor's request for termination is not based upon the employee's protected status. Seeking legal counsel may also be advisable. The Company should further consider conducting anti-discrimination training for its employees and managers. The training should include examples of the type of conduct that may constitute discriminatory or harassing behavior, including conduct based on an individual's sexual orientation or transgender status. Training is additionally important because it informs and sensitizes employees on the type of behavior that can give rise to liability.
Jennifer Parent is a director at McLane Middleton. She chairs the firm's Litigation Department and is a member of its Employment Law Practice Group.
Published in NH Business Review (9/26/2020)
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