When Donald J. Trump was elected president in 2016, gay and lesbian leaders feared their far-reaching civil rights victories of recent years would be in peril because of the imminent arrival of scores of conservative judges and full Republican control of the federal government. But on Monday, June 15, 2020, Trump appointee Justice Neil Gorsuch authored an historic 6-3 majority opinion by the Supreme Court of the United States providing nationwide protections for the LGBTQ community against workplace discrimination. In Bostock v. Clayton County, Georgia 2020 WL 3146686, Justice Gorsuch wrote, “In Title VII, Congress adopted broad language making it illegal for an employer to rely on an employee’s sex when deciding to fire that employee. *** We do not hesitate to recognize today a necessary consequence of that legislative choice: An employer who fires an individual merely for being gay or transgender defies the law.” Prior to Bostock, it was legal in more than half of the states of our country to fire or not hire workers for being gay, bisexual, or transgender.
The decision in Bostock covering three cases was the Court’s first on LGBTQ rights since the retirement in 2018 of Justice Anthony M. Kennedy, who wrote the majority opinions in all four of the court’s major gay rights decisions including the seminal case of Obergefell v. Hodges, 576 U.S. 135 (2015) legalizing gay marriage in the country. The first of these cases concerned a pair of lawsuits from gay men who said they were fired because of their sexual orientation: Bostock and Altitude Express Inc. v. Zarda, No. 17-1623. The third was a gender identity case entitled R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission, No. 18-107. R.G. & G.R., was brought by a transgender woman named Aimee Stephens who was fired from a Michigan funeral home after making it known in 2013 that she was a transgender woman and would start working in women’s clothing. When describing the 3 cases, Justice Gorsuch wrote, “Few facts are needed to appreciate the legal question we face. Each of the three cases before us started the same way: An employer fired a long-time employee shortly after the employee revealed that he or she is homosexual or transgender—and allegedly for no reason other than the employee’s homosexuality or transgender status.”
Justice Gorsuch began his opinion in Bostock by explaining that the Supreme Court generally interprets a law by looking at how the public would have understood the law when it was passed — “the ordinary public meaning” of the law. Here, he reasoned, the word “sex” means either male or female. Under the plain terms of Title VII, then, an employer violates Title VII “when it intentionally fires an individual employee based in part on sex,” even if “other factors besides the plaintiff’s sex contributed to the decision” and even if “the employer treated women as a group the same when compared to men as a group.” Justice Gorsuch stressed that what matters is whether “changing the employee’s sex would have yielded a different choice by the employer.” Discrimination against LGBTQ employees, Justice Gorsuch and the rest of the majority made clear, “necessarily entails discrimination based on sex; the first cannot happen without the second.”
In New Jersey, the rights of gay and transgender workers have been well protected under New Jersey’s Law Against Discrimination (LAD), N.J.S.A., 10:5-1, et. seq. LAD prevents employers and businesses from discriminating against individuals based on numerous immutable characteristics, including gender identity and sexual orientation. N.J.S.A., 10:5-1-49. Additionally, in 2018, Governor Phil Murphy signed into law 3 bills expanding rights for the New Jersey transgender community. New Jersey also has the strongest Equal Pay Act in the country, which extends equal pay protections to all protected classifications of sex, race/ color, national origin/ancestry, religion/creed, disability, age, pregnancy, marital status, sexual orientation, and gender identity. N.J.S.A., 10:5-12(a).
If you believe you have been or are currently being treated differently or hostilely by your employer or a coworker because of your gender identity, call the attorneys at Mashel Law (732) 536-6161 or fill out the contact form on this page for immediate help. At Mashel Law, located in Morganville, New Jersey, we are dedicated to protecting the rights of employees.