TAKING STOCK OF BOSTOCK: WHAT IT MEANS FOR YOU

In June, the United States Supreme Court ended its 2019-2020 Term by announcing its rulings in several monumental and far-reaching cases. Bostock v. Clayton County, Ga., one of the most widely discussed cases of the Term and, perhaps, the most likely of the Court’s opinions to touch on everyday life, involved employment discrimination claims by fired gay and transgender employees – including a transgender funeral director. In Bostock, the Court sought to resolve a disagreement among lower courts about whether Title VII of the Civil Rights Act of 1964, which prohibits sex discrimination, also prohibited discrimination on the basis of sexual orientation or gender identity. With a 6-3 majority, the Court held that, under the law’s broad language, “[a]n employer who fires an individual merely for being gay or transgender defies the law.”

the underlying cases

In deciding Bostock, the Court considered a trio of cases: two involving gay men – Gerald Bostock, who was fired from his job as a child welfare advocate in Clayton County, Georgia, and Donald Zarda, who was fired as a skydiving instructor in New York – and one involving a transgender woman. All three plaintiffs were longtime employees who were fired shortly after their employer learned of their orientation or gender identity—this was allegedly the only basis for the employee’s termination. Much of the attention surrounding Bostock has focused on Aimee Stephens, a transgender woman who was fired from her job as a funeral director in Michigan after notifying her employer that she intended to “live and work full-time as a woman.”

Stephens began working at R.G. & G.R Harris Funeral Homes, Inc. as an apprentice before becoming a funeral director/embalmer. During her employment, Stephens presented as a man and used her then-legal name, William Stephens. Before departing on a vacation, Stephens gave her employer a letter that stated that she had struggled with “a gender identity disorder” her entire life, and that she had “decided to become the person that [her] mind already [was].” As part of this decision, she informed her employer that, after her vacation, she would return “as [her] true self…in appropriate business attire.”
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Though her employer was not religiously affiliated, the owner stated that he had been “called [by God] …to serve grieving people” and that his life’s purpose was “to minister to the grieving.” In line with his faith, he informed Stephens that her proposal was “not going to work out” and fired her. In the underlying case, her employer testified that he believed that “permit[ting] one of [the funeral home’s] male funeral directors to wear the uniform for female funeral directors at work” would make him complicit “in supporting the idea that sex is a changeable social construct rather than an immutable God-given gift.”

the supreme court's ruling

In the cases before the Supreme Court, all three employers acknowledged that they had terminated their employees for being homosexual or transgender, a fact many plaintiffs often struggle to establish in court. The employers argued, however, that Title VII’s bar on some forms of employment discrimination did not prohibit them from taking such an action.
Passed in 1964, Title VII prohibits an employer from discriminating against an individual “because of [the] individual’s race, color, religion, sex, or national origin.” Under the law, to “discriminate against” means to treat an individual employee worse than other employees who are otherwise similarly situated to the employee. By prohibiting discrimination “because of” sex, for example, the law prohibits sex from being a “but-for” cause of the employer’s action. That is, the employer would not have taken the adverse action in the absence of, but-for, the employee’s classification (i.e., sex). In sum, the law prohibits an employer from considering an employee’s sex when taking an adverse employment action (e.g., firing the employee). This is true even if sex is not the sole or even primary cause of the adverse action—the law prohibits sex from being a factor at all.

Though the law does not explicitly identify “sexual orientation” or “gender identity” as protected categories, in Bostock, the Supreme Court determined that discrimination based on these categories was prohibited by Title VII because it is impossible to separate them from sex: an employer who fires an employee for being homosexual or transgender necessarily and intentionally does so, at least in part, based on the employee’s sex. This is so, the Court stated, because in taking its action, the employer is applying sex-based rules or stereotypes, and, thus, is discriminating based on sex. To explain the concept, the Court used the example of two employees who are both attracted to men. In the employer’s eyes, the employees are nearly identical in all respects except one is a man and the other a woman. If the employer fires the male employee for no other reason than the fact that he is a man that is attracted to men, the employer has necessarily discriminated against the male employee for exhibiting traits or actions that it tolerates in the female colleague. This is prohibited by Title VII.
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The Court acknowledged that several questions remained unanswered by its decision; most notably, the boundaries between Title VII and the Religious Freedom Restoration Act, which prohibits the federal government from “substantially burdening” a person’s exercise of religion in many cases. Aimee Stephen’s employer initially raised the law but did not appeal an earlier, adverse lower court ruling to the Supreme Court.

what does it mean?

In some parts of the country, Bostock should have little practical effect: 22 states already had laws in place that prohibited discrimination based on sexual orientation or gender identity. The ruling, however, now removes any doubt about Title VII’s applicability and prohibits discrimination based on sexual orientation or gender identity at all entities covered by the law; generally, “employers” with at least fifteen employees.
Though each workplace is different, following the Court’s ruling, employers should take a moment to:

REVIEW PRACTICES.
Review practices, policies, and procedures (including employee handbooks) to ensure that they reflect the current law. If not already explicit, anti-discrimination and anti-harassment policies should be revised to specifically prohibit discrimination on the basis of sexual orientation or gender identity.

REVIEW UNIFORM REQUIREMENTS.
In a lower court opinion, it was noted that Aimee Stephens had been fired after notifying her employer that she would begin wearing a skirt, and her employer testified that he disagreed with Stephens’ decision to “dress like a woman,” and fired her, in part, because of it. Though not expressly addressed by Bostock, the opinion indicates that gender-specific uniforms or workplace attire requirements will likely be viewed skeptically.

TRAIN WORKERS.
Ensure that employees, especially managers and supervisors, have been trained regarding anti-discrimination and anti-harassment policies and will act to stop discrimination in the workplace. Employers can be held vicariously liable for the actions of their employees. If a supervisor objects or refuses to ensure that the workplace remains free of discrimination, employers should consider whether the risk of creating a demoralized or hostile workplace, or the risk of litigation, is worth the supervisor’s continued employment.

EXAMINE EMPLOYEE BENEFITS.
​Less formal benefits should be reviewed. In a lower court opinion, it was noted that Aimee Stephens’ employer provided clothing allowances to public-facing male employees but did not provide an allowance for public-facing female employees. Employers should ensure that benefits such as these are equally available regardless of gender.

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Excerpted from The Cremationist, Vol 56, Issue 3: “Taking Stock of Bostock: What it Means for You” by Christopher R. Jackson. Members can read this article and much more in The Cremationist archive. Not a member? Consider joining your business to access this and all archives of The Cremationist plus the many resources referenced here to help you find solutions for all aspects of your business – only $495.
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For additional information regarding the effect of the Bostock opinion and how it may affect you, please use your CANA member legal benefits and contact Chris Jackson directly. CANA Members can contact CANA Legal Counsel Lara M. Price, shareholder at Sheehy, Ware, Pappas, P.C., for complimentary 30-minute consultation each month.

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Chris Jackson has a diverse civil litigation practice handling a variety of insurance coverage and casualty litigation, including complex, multi-party insurance coverage and bad faith litigation. Chris also has experience in construction and commercial litigation. Before entering private practice, Chris served as a law clerk to the Honorable Ron Clark, District Judge of the U.S. District Court for the Eastern District of Texas.