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Guidance on Supreme Court LGBT Ruling

AMA Newsroom , State & Local Issues ,

4222 East Thomas Road Suite #230, Phoenix, AZ 85018
P.O. Box 36285, Tucson, Arizona  85740-6285
2831 St. Rose Parkway, Suite 206, Henderson, Nevada  89052-4840
(602) 957-7877 (inside Arizona) ▪ (877) 957-7877 (outside Arizona)
(602) 957-7876 (Fax) ▪ www.ScottClarkLaw.com

On June 15, 2020 the United States Supreme Court issued a landmark decision concluding that the prohibition against sex discrimination under Title VII of the 1964 Civil Rights Act unambiguously protects members of the LGBTQ community from discrimination in employment. Specifically the Court held:

  •  It is analytically impossible to fire an employee based on that employee’s status as a transgender person without being motivated, at least in part, by the employee’s sex. . . “Discrimination because of sex” inherently includes discrimination against employees because of a change in their sex.

  • 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 undistinguishable role in the decision; exactly what Title VII forbids.

Although this decision has resulted in considerable controversy it merely confirms a position that both the federal Equal Employment Opportunity Commission (“EEOC”) and the United States Department of Housing and Urban Development (“HUD”) has taken for at least six years. During that six year period both EEOC and HUD have been accepting, investigating and litigating discrimination complaints alleging sex discrimination because of an employer’s or housing provider’s failure to hire, promote, rent, or because of harassment of a person who is gay, Lesbian, transgender, bisexual or queer. While the current decision specifically concerns only employment cases brought under the 1964 Civil Rights Act, courts apply the same standards for interpreting the Fair Housing Act and Title VII so this decision should be understood to encompass both laws.

Just as it is unlawful in employment to fail or refuse to hire a person or to subject a person to different terms and conditions of employment because of his/her sex, it is also clearly unlawful to fail or refuse to hire or to subject a person to different terms and conditions of employment because of that person’s sexual orientation, gender identity or other similar characteristic.

Similarly in housing, landlord may not fail or refuse to rent or subject a person to different terms or conditions of housing because of the person’s status or self-identification as an LGBTQ individual.

  

BEST PRACTICES

The Supreme Court’s decision can and should be used as a wake-up call to review policies, practices and employee training. Among other things:

  • Companies that do not currently prohibit LGBTQ discrimination should review and amend their policies and procedures, and notify employees that discrimination against any protected group will result in disciplinary action up to and including termination of employment.

  • In order to reduce the likelihood of Management being held liable for impermissible conduct by rogue employees, Management should distribute a clear policy prohibiting discrimination, with examples of unlawful practices, and have each employee sign the policy.

  • Management should clearly notify residents and employees that it does not tolerate any kind of discrimination and provide a mechanism that the resident and/or employee can use to report it.

  • Management should also emphasize to employees that the phrase “terms or conditions” refers to all aspects of a person’s employment and/or housing, and that a prohibition of discrimination necessarily prohibits conduct that is not only explicitly impermissible but also implicitly objectionable. This includes not only obvious  discrimination, but also harassment because of a person’s race, color, religion, sex, LGBTQ status, or membership in any other protected group. Examples of harassment include but are not limited to:
    • Offensive jokes
    • Slurs
    • Name calling
    • Physical assaults or threats
    • Intimidation
    • Ridicule or mockery
    • Insults or put downs
    • Offensive objects or pictures
    • Interference with work performance or living conditions

 Anyone with questions about their obligations to provide a discrimination-free workplace and living environment is encouraged to contact legal counsel at any time. 

 

Scott M. Clark
admitted in AZ

Judy Drickey-Prohow
admitted in AZ

Christopher R. Walker
admitted in AZ, NV

David Astur
admitted in NV

Colin L. Clark

   admitted in AZ

Christopher  Hoynicki

  Admitted in AZ

Brett Meyer

  Admitted in AZ

4222 East Thomas Road Suite #230, Phoenix, AZ 85018

P.O. Box 36285, Tucson, Arizona  85740-6285

2831 St. Rose Parkway, Suite 206, Henderson, Nevada  89052-4840

 (602) 957-7877 (inside Arizona) ▪ (877) 957-7877 (outside Arizona)

(602) 957-7876 (Fax) ▪ www.ScottClarkLaw.com

Judy Drickey-Prohow
judy@scottclarklaw.com
Tucson Office