CLIENT ALERT: Gay and Trans Employees Cannot be Discriminated Against Anywhere.
In some United States communities, sex and whom it’s enjoyed with, as well as the gender anyone decides to be, and the resulting way in which that person gets treated after disclosing this information, has the same quotidian impact as having blue eyes, red hair, or liking chicken.
Unfortunately, for the greater part of the gay and transgender experience, communities and particularly work environments across the United States discriminate against persons who come out and say deeply meaningful things like “I’m gay” or “I’m transgender.” Yet, as of right now, when employees tell that story in their work communities, they cannot be fired, demoted, retaliated or otherwise stereotyped—a massive win.
For years gay employees had completely different rights when facing hatred and hurt from co-workers; and these rights depended not on the level of hatred, but rather on the work place’s location. For example, the same facts protected a gay employee in the City of Philadelphia, as opposed to in the neighboring counties of Delaware or Montgomery. No more. So long as Title VII applies to the employer (as in there are more than 15 employees or employers with 14 employees can get away with it) gay and transgender employees can sue their job for the hate hurled at them related to who they are.
This fantastic result comes from a Supreme Court case called Bostock v. Clayton Cnty., Ga. which expanded the protection normally afforded to straight employees against sexual harassment (as in you can’t fire the woman employee you supervise because she did not go out for drinks with you) to employees who are harassed, disciplined or fired just because they come out. (1).
Irony also propelled Bostock high on the news cycle: A very conservative judge, Gorsuch, wrote the opinion which the liberals signed on to, and said:
“Today, we must decide whether an employer can fire someone simply for being homosexual or transgender. 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.” (2).
We have represented many gay employees so this language makes as much sense to us as working with people who have blue eyes, are red-haired, or like chicken. (3). Yet, as gay or trans employees, or as their ally, sue your employer (contact us first) if and when:
• Your employer knows you are gay or transgender and does anything bad to you.
• You are demoted.
• You are not promoted.
• You are made to suffer a change in your job that is humiliating
• You are disciplined for false reasons
• You are fired for false reasons
• Your workplace becomes seriously hostile because of who you are
• You complain of any of the above to HR and they do nothing
• You are not hired
• You stand up for gay or trans employees and any of the above happens to you
Raul Jauregui
Jauregui Law Firm
I am an attorney and I defend mostly respondents of sexual misconduct in colleges or universities. This is absolutely not my legal opinion or my legal advice, but rather, suggestions on how to react to gay and trans discrimination in employment. If you’re in this situation, in any way, consult a lawyer now.
As posted in Quora:
ENDNOTES:
1. Bostock v. Clayton Cnty., No. 17-1618, 17-1623 and 18-107, 2020 U.S. LEXIS 3252 (U.S. June 15, 2020).
2. id.
3. Bostock is federal law, so it makes the situation even across the states—as in that’s the point that came out of the Civil War; you can’t have abuse in some states and less abuse in others. Bostock also incorporates a view of the workplace that reflects urban, modern, diverse, free, lay definitions of America. In some states, including California, New York, and Washington, laws prohibiting employment discrimination on the basis of sexual orientation and gender identity as Bostock now prohibits everywhere, already existed. This is also true in the case of Pennsylvania where cities as different as Philadelphia and little tiny Swarthmore had this employee protections as part of their local laws.