The New Jersey Employment Law Firm Blog
The U.S. Supreme Court issued a landmark decision on June 15, 2020 regarding employment discrimination on the basis of sexual orientation and gender identity or gender expression. Many state laws, including the New Jersey Law Against Discrimination include both of these as separate categories in addition to sex or gender. While Title VII of the Civil Rights Act of 1964 does not expressly include either, the Supreme Court’s 6-3 ruling in Bostock v. Clayton County, Georgia holds that Title VII’s prohibition on sex discrimination includes both categories. Justice Gorsuch’s majority opinion applies textual analysis to Title VII to determine that an employer that fires or otherwise discriminates against someone because of their sexual orientation, or because they are transgender, has discriminated against them because of sex. If you feel you have suffered discrimination on the basis of sex, it is recommended that you contact a New Jersey sex discrimination attorney as soon as possible.
Sex Discrimination Under Title VII
The meaning of “sex,” as used in Title VII, has grown over the years through both legislation and court decisions. Sex discrimination under Title VII includes discrimination on the basis of pregnancy thanks to the Pregnancy Discrimination Act of 1978. It has included sexual harassment since the Supreme Court’s 1986 decision in Meritor Savings Bank v. Vinson.
The majority opinion in Bostock identified three decisions that also expanded the meaning of sex discrimination under Title VII:
– In Phillips v. Martin Marietta Corp. (1971), the court found that even though the employer hired more women than men overall, its policy against hiring mothers of young children violated Title VII.
– A requirement that women pay more into a pension fund than men because of longevity statistics constituted sex discrimination, according to the court’s ruling in Los Angeles Dept. of Water and Power v. Manhart (1978).
– The court found that Title VII prohibits sexual harassment between members of the same sex in Oncale v. Sundowner Offshore Services (1998).
Discrimination “Because of” Sex
In those three cited cases, Justice Gorsuch noted, the employers did not think of these policies or practices as discrimination on the basis of sex, and did not label them as such. Nevertheless, sex was the ultimate reason for the adverse employment actions. This is also known as “but for” causation — but for the sex or gender of a parent of a young child in Phillips, i.e. a father instead of a mother, the employer might have taken a different action.
The court applied but-for causation to the three cases on appeal in Bostock. Two cases involved an employee fired for their sexual orientation. The other involved an employee who was fired after she announced her intention to transition to a female gender identity. The court found that firing a person because of their attraction to members of the same sex, or because their gender identity does not match the gender assigned to them at birth is an action based on that person’s sex. The employer who fired a man who is attracted to men would not have fired a woman who is attracted to men. The employer who fired a person who was assigned a male gender identity at birth, but whose actual gender identity is female, would not have fired someone whose gender identity and assigned gender match one another.
The experienced and knowledgeable sex discrimination attorneys at the Resnick Law Group are available to answer your questions and advise you of your rights and options if you have a dispute with an employer in New Jersey or New York. Please contact us today online, at 973-781-1204, or at 646-867-7997 to schedule a confidential consultation to discuss your case.