Hi. My name is Chip Clark, and I am a partner at Goodin Abernathy, where I focus primarily on the rights of employees.
On June 15, 2020, the United States Supreme Court issued its landmark decision in the case of Bostock v. Clayton County, holding that federal law prohibits employment discrimination against LGBTQ workers.
Interestingly, conservative Justice, Neil M. Gorsuch, wrote for the majority in the 6-to-3 ruling, stating:
“An employer who fires an individual merely for being gay or transgender defies the law.”
The case concerned Title VII of the Civil Rights Act of 1964, which bars employment discrimination based on race, religion, national origin and sex. The question for the justices was whether that last prohibition — discrimination “because of sex”— applies to many millions of gay and transgender workers.
Justice Gorsuch wrote that it did.
“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,”
Gorsuch goes on to say,
“It is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”
The court considered two sets of cases. The first concerned a pair of lawsuits from gay men who said they were fired because of their sexual orientation: Bostock v. Clayton County, Ga., No. 17-1618, and Altitude Express Inc. v. Zarda, No. 17-1623. The second was based on gender identity. In that case, Aimee Stephens, was a funeral director working near Detroit when she was fired in 2013 after announcing she would begin living as a woman. Sadly, Aimee died in May at the age of 59, not living to see her heroic contribution to this landmark decision. Her willingness to stand up to her employer now makes it it illegal for employers to terminate an employee based on gender identity.
In 27 states, there are no explicit statewide laws protecting people from discrimination on the basis of sexual orientation or gender identity in employment, housing and public accommodations, according to Freedom For All Americans, a bipartisan campaign to protect LGBTQ people from discrimination. An employee in one of these states conceivably could be fired for being gay or transgender – and would have no guaranteed rights against it.
In 21 other states, plus the District of Columbia, employees had full protection from discrimination on the basis of sexual orientation and gender identity in employment, housing and public accommodation.
There are 8.1 million LGBTQ workers ages 16 and older in the USA, according to the institute. About 3.9 million of those work in those 27 states.
What About Discrimination in Small Businesses with Fewer than 15 Employees?
Unfortunately, Title VII of the Civil Rights Act only prohibits employment discrimination by employers with 15 or more employees.
Conceivably, a business with fewer than 15 employees in certain parts of Indiana could still legally fire somebody on the basis of sexual orientation or gender identity, unless there is a city or county ordinance prohibiting such discrimination.
Here, in the City of Indianapolis, we have had an ordinance that prohibits such discrimination since 2005. Other Indiana communities have laws to protect against discrimination based on sexual orientation, but not gender identity, so there still remains a patchwork of laws if your employer has fewer than 15 employees.
What Should Workers Do If They Are Fired Based on Sexual Orientation or Gender Identity?
If you’re fired on the basis of sexual orientation or gender identity, the first call you should make is to an attorney who knows and understands this area of the law. We can assist you with filing a charge of discrimination with the U.S. Equal Employment Opportunity Commission or the local agency that enforces state or local anti-discrimination laws. This is the first step in filing a lawsuit in Federal or State Court against an employer who discriminates.
If you have questions about your rights as a member of the LGBTQ community, please call me for free, no obligation, consultation.