Case Discussion 12: The U.S. Supreme Court ruled Monday that the ban on sex discrimination in Title VII of the Civil Rights Act protects gay and transgender workers. The decision was issued in the combined cases Bostock v. Clayton County, Altitude Express v. Zarda, and R.G. & G.R. Harris Funeral Homes v. Equal Employment Opportunity Commission. In Bostock, child welfare advocate Gerald Bostock was fired after he began participating in a gay recreational softball league, resulting in disparaging comments from influential members of the community. In Altitude Express, skydiving instructor Donald Zarda was fired days after he mentioned that he was gay. Zarda later died in a skydiving incident. In R.G. & G.R. Harris Funeral Homes, Aimee Stephens was fired after she told her employer that she planned to live and work full time as a woman. Stephens died in May at age 59 after suffering from kidney disease. The estates of Zarda and Stephens continued the cases. Justice Neil M. Gorsuch wrote the majority opinion. He was joined by Chief Justice John G. Roberts Jr. and Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan. "Today, we must decide whether an employer can fire someone simply for being homosexual or transgender," Gorsuch wrote. "The answer is clear. 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. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids. "Those who adopted the Civil Rights Act might not have anticipated their work would lead to this particular result. Likely, they weren't thinking about many of the act's consequences that have become apparent over the years, including its prohibition against discrimination on the basis of motherhood or its ban on the sexual harassment of male employees. But the limits of the drafters' imagination supply no reason to ignore the law's demands." Gorsuch provided some examples of how Title VII and the Supreme Court precedent apply in cases of gay and transgender employees. If a male employee and a female employee are both attracted to men but only the male employee is fired because of that attraction, the employer intentionally singles out the male employee in part because of the employee's sex, Gorusch said. If a transgender employee and a female employee both identify as female and only the transgender employee is fired, the employer intentionally penalizes a person identified as male at birth for traits or actions that it tolerates in an employee identified as female at birth, Gorsuch said.

T/F 1. Firing employees because they are gay or transgender is prohibited by Title VII of the 1964 Civil Rights Act, despite the fact that, at the time Title VII became law, Congress did not contemplate that the prohibition against sex discrimination in employment protected gay or transgender employees. 2. Firing Zarda and Stephens because they were gay or transsexual violated not only their civil rights under Title VII but also their due process protections under the Fourteenth Amendment. 3. Bostock, Zarda and Stephens pursued disparate impact discrimination claims against their employers, and under the McDonald-Douglas shifting burden of proof, their employers are required to provide evidence of a nondiscriminatory reason for the employment decision. 4. Stephens' diagnosis of gender dysphoria and need to live as a women is considered a disability under the Americans with Disability Act of 1990 and R.G. & G.R. Harris Funeral Homes is required to make a reasonable accommodation for Stephens' gender transformation.

5. At trial, the employers of Bostock, Zarda and Stephens will not be successful in attempting to establish the Faragher/Ellerth defense by a preponderance of evidence