As part of our 2020 LGBTQ SCOTUS Ruling webinar on July 7th, Brendan and Danielle hosted an in-depth discussion about the recent SCOTUS decision protecting the employment rights of LGBTQ employees under Title VII. The webinar primed employers for what we think will be coming, provided advice on the issues and questions to think about moving forward, and gave important employment considerations as we begin to receive guidance from the EEOC and federal courts.

1. Presented by Danielle Crane
+ Brendan Feheley
2020 LGBTQ
SCOTUS Ruling

3. Before this case, there was no state
prohibition against LGBTQ discrimination
Some local governments had
ordinances prohibiting it, but very
different from Title VII protections
EEOC also recognized LGBTQ status
for purposes of filing charges
Decision is the first time a civil cause
of action will be recognized in the
courts

4. Discrimination
CASES

5. Circumstantial
EVIDENCE
Employee proves that they (1) are a
member of a protected class; (2) were
qualified; (3) suffered an adverse
employment action; and (4) were
replaced by someone outside the
protected class or that a person outside
the class was treated more favorably
If proven, the burden shifts to the
employer to articulate a legitimate, non-
discriminatory reason for the action
If the employer can do this, the burden
shifts back to the employee to prove that
the employer’s stated reason is pretext

6. Disparate
IMPACT
A policy or practice that is neutral on its
face impacts one protected class
disproportionately
The policy is not job related or based on
business necessity

7. Sex
STEROTYPING
When an employer discriminates against
an employee because he or she doesn’t
conform to traditional gender
stereotypes
Can involve members of the same sex
Not a bona fide occupational qualification

8. Sexual Orientation
CASES

9. Veretto v. U.S. Postal
Service and Castello v.
U.S. Postal Service
Complainant's allegation of sexual
orientation discrimination was a
claim of sex discrimination because
it was based on the sex stereotype
that marrying a woman is an
essential part of being a man

10. Culp v. Dep't of
Homeland Security
Complaint stated a claim of sex
discrimination under Title VII where
supervisor counseled complainant
that associating with lesbian
colleague created an improper
perception

11. Morris v.
Dep't of the Army
Complainant alleged that he was
subjected to a hostile work
environment when he was told "you
are in the South now, you and [your
partner] might find you are not as
safe or accepted here as you were
in New York. This is the Bible Belt."

12. Couch v. Dep't of Energy
The Commission noted that the
words "fag" and "faggot" have been
historically used in the U.S. as a
highly offensive, insulting, and
degrading sex-based epithet
against gay men and men who are
perceived as insufficiently masculine

13. Complainant v.
U.S. Postal Service
Hateful nature of alleged comments
coupled with alleged lack of adequate
response on the part of management,
sufficiently severe to state a viable
claim of harassment due to gender-
based stereotyping that required
further investigation and processing.

14. Gender Identity
CASES

15. Macy v. Dep't of Justice
Intentional discrimination against a
transgender individual because that
person is transgender is, by
definition, discrimination based on
sex and therefore violates Title VII

16. Jameson v.
U.S. Postal Service
Intentional misuse of the
employee's new name and pronoun
may constitute sex based
discrimination and/or harassment

17. Complainant v. Dep't
of Veterans Affairs
S sex discrimination allegation
involving the failure to revise
records pursuant to changes in
gender identity stated a valid Title
VII claim

18. Lusardi v.
Dep't of the Army
Restrictions on transgender female's ability to
use a common female restroom facility
constituted disparate treatment on the basis
of sex and that the restroom restrictions
combined with hostile remarks, including
intentional pronoun misuse, created a hostile
work environment on the basis of sex

20. The Ministerial
EXCEPTION
Currently, Title VII allows religious
exemptions for faith-based organizations to
hire with an eye to religious qualifications
Some have used this to argue that religious
organizations can refuse to hire and/or fire
employees who are LGBTQ if it conflicts with
their sincerely held religious beliefs

21. Religious Freedom
Restoration Act
of 1993

22. "We are also deeply concerned with preserving the promise of
the free exercise of religion enshrined in our Constitution; that
guarantee lies at the heart of our pluralistic society . . . But how
these doctrines protecting religious liberty interact with Title
VII are questions for future cases too ... while other employers
in other cases may raise free exercise arguments that merit
careful consideration, none of the employers before us today
represent in this Court that compliance with Title VII will
infringe their own religious liberties in any way.”
Bostock v. Clayton County, Georgia

23. Individuals outside the protected class also
suffered the same adverse action
Individuals in the protected class did not
suffer the same adverse action
Presenting
EVIDENCE

24. It allows for a third gender choice
on driver's licenses and birth
certificates, and eases requirements
for transgender people to change
their gender on identification
documents.
California’s Gender
RecognitionACT
Expect more state legislation
following this decision

25. EEOC
CHANGES

26. Rethink
Policies
Update
handbooks > Management
Training >

28. Danielle Crane
Kegler Brown Hill + Ritter
dcrane@keglerbrown.com
keglerbrown.com/crane
614-462-5444
Brendan Feheley
Kegler Brown Hill + Ritter
bfeheley@keglerbrown.com
keglerbrown.com/brendanfeheley
614-462-5482