Supreme Court Update

Ron Poliquin,, your Delaware Employment Lawyer.

This is a special Supreme Court update regarding the rights of gays and transgenders regarding discrimination employment. The U.S. Supreme Court has decided by a six-to-three vote that a key provision of the Civil Rights Act of 1964, known as Title 7, bars job discrimination because of sex, among other reasons, encompasses bias against people because of their sexual orientation or gender identity.

The Supreme Court decided that gays and transgenders, under this law cannot be discriminated against in their employment. That means hostile work environment harassment or discrimination. In addition, gays and transgender individuals cannot be retaliated against for complaining about discrimination based on their status as gays or transgenders. All individuals cannot be retaliated against for participating in an investigation involving complaints of discrimination for gays and transgenders.

Justice Neil Gorsuch wrote, 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 different sex. Basically, what happened in this case, which was consolidated in Bostock V. Clayton County Georgia, I am going to give a brief description of the facts and scenarios in those cases.

In the Bostock case, Clayton County fired Gerald Bostock for conduct unbecoming of a county employee after he began participating in a gay softball league. Another case that was part of the suit was Altitude Express Inc. versus Zarda, which Altitude Express fired Donald Zarda within a few days of him identifying as gay. R. G. Harris Funeral Homes versus EEOC, the funeral home fired Aimee Stephens, who when was hired presented as a male, but later told her employer of her pans to live and work full-time as a woman. All three employees had sued under the federal statute.

The Supreme Court stated sex plays a necessary and indistinguishable role in the decision, exactly what Title 7 forbids in regarding all these decisions. It is a but-for cause, meaning but-for them being gay that they would not have been discriminated against. So, what does this mean to Delaware employees? Well, it means that it backs up the state law, which the state law already prohibits discrimination for transgender and gays and also gives employee attorneys, like myself, an extra weapon to go to Federal Court where there will be no doubt anymore on prohibitions against discrimination on the federal level against gays and transgenders.

Be your own best advocate. If you need to get expert advice on this, come see a qualified employment attorney such as myself.

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