Sexual Orientation / Gender Identity Discrimination
Curt Masker is a Nashville sex and gender discrimination lawyer who fights for LGBTQ workers who have been discriminated against in the workplace. If you have been fired, demoted, or otherwise treated poorly after your employer learned of your sexual orientation or gender identity, you may be the victim of unlawful discrimination.
Both sexual orientation and gender identity discrimination are prohibited by federal law. Employees who suffer such discrimination can seek monetary and equitable relief, including back pay, front pay, emotional distress damages, punitive damages, and reinstatement.
Sexual orientation discrimination occurs when an employee suffers an adverse employment action based on their status as lesbian, gay, bisexual, asexual, or pansexual. The discrimination encountered by transgender workers often has no connection to the employee’s sexual orientation, but rather is related to societal stereotypes of gender roles and norms.
Some examples of such discrimination include:
- Terminating an employee based on the individual’s LGBTQ status (e.g, after learning of the employee’s planned sex reassignment surgery)
- Denying an employee a promotion after learning of their LGBTQ status
- Requiring an employee to use a bathroom inconsistent with the employee’s gender identity
- Harassing an LGBTQ employee and using homophobic or transgender slurs
- Retaliating against an LGBTQ employee after they report harassment
In EEOC v. R.G., the Sixth Circuit Court of Appeals held that firing an employee for failing to conform to sex stereotypes was a violation of Title VII. 884 F.3d 560 (2018). The plaintiff, a transgender woman, was discriminated against based on her transgender status and transitioning identity. The court rejected the employer’s argument that as a funeral home it qualified for a ministerial exception or that it was protected under the Religious Freedom Restoration Act. Similarly, in Zarda v. Altitude Express, Inc., the Second Circuit Court of Appeals held that Title VII prohibits sexual orientation discrimination and it overruled its prior precedents to the contrary. 883 F.3d 100 (2018).
Conversely, in Bostock v. Clayton Cty. Bd. of Comm’rs, the Eleventh Circuit Court of Appeals upheld the trial court’s dismissal of the plaintiff’s Title VII claims. 723 Fed. App’x. 964 (2018). The plaintiff was fired by Clayton County, Georgia for conduct “unbecoming” a county employee shortly after he began participating in a gay recreational softball league. The appeals court held that the trial court did not err in dismissing the plaintiff’s claims for sexual orientation discrimination under Title VII.
On consolidated appeal, the U.S. Supreme Court upheld the Second and Sixth Circuits’ decisions and reversed the Eleventh Circuit’s decision. Bostock v. Clayton Cty., 140 S. Ct. 1731 (2020). A 6-3 majority of the Court found that it was impossible to discriminate against a person for being gay or transgender without also discriminating against that individual based on sex. In other words, discriminating on the basis of their gay or transgender status inescapably relied on sex in the decision-making process. The U.S. Supreme Court’s Bostock decision represents a major victory for LGBTQ advocates in the U.S.
The Tennessee Human Rights Act (THRA) prohibits sex discrimination, but it is unclear if Tennessee courts will apply Bostock’s interpretation of Title VII for similar claims under the THRA. Although Title VII and the THRA are generally construed identically, Tennessee courts are not legally bound by federal precedent when applying state law. Thus, ensuring you file your legal claims under the appropriate statute is critical to the viability of your case.
If you are an LGBTQ worker and are considering your legal options, contact Nashville employment attorney Curt Masker for a free and confidential consultation.