The United States Supreme Court has only given two significant decisions on sexism in the workforce.
Those rulings narrow the difference between the statutes of discrimination on employment in federal and California.
The Supreme Court, in a seminal ruling, expanded immunity against prejudice under federal law to LGBTQ workers previously granted by the California statute. For another instance , the court extended the defense of religious workers against federal discrimination claims, but California law has long given much greater protection.
Title VII of the 1964 Federal Civil Rights Act prohibits segregation in jobs on the grounds of sex, among other ratings. The Act does not forbid discrimination on the basis of sexual orientation , gender identity, or gender expression.
California’s Fair Employment and Housing Act (“FEHA”), by contrast, expressly prohibits employment discrimination “because of . . . gender, gender identity, [and] gender expression.” “”Gender expression’ means a person’s gender-related appearance and behavior whether or not stereotypically associated with the person’s assigned sex at birth.’
The Supreme Court held 6-3 in Bostock v Clayton County that an employer violated Title VII when firing at an employee because the worker is homosexual or transgender. Justice Neil Gorsuch writes for the group, describing “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.”
The majority claimed it was meaningless because when the legislation was passed 56 years ago few Americans would have wanted a “sex”-based prohibition on discrimination to protect homosexual and transgender people. The court was required to apply the “strongly broad” provisions of the law as specified, Justice Gorsuch said, except if unintended interpretations of certain words occurred. Justice Samuel Alito dissented along with Justice Clarence Thomas. Justice Alito also accused the plurality of changing Title VII as understanding.
It mattered to the dissenters that “In 1964, ordinary Americans reading the text of Title VII would not have dreamed that discrimination because of sex meant discrimination because of sexual orientation, much less gender identity. The ordinary meaning of discrimination because of ‘sex’ was discrimination because of a person’s biological sex, not sexual orientation or gender identity.”
In much of the rest of the country that California has had in place for years, the court’s ruling effectively extended workplace protections to gay and transgender people.
In Our Lady of Guadalupe School v. Morrissey-Berru, Justice Alito ruled with a vote of 7-2 that a commonly accepted “ministerial loophole” was embedded in the moral provisions of the United States First Amendment. Constitution barred discrimination claims on employment brought by two elementary school teachers at Roman Catholic schools in Los Angeles, even where those teachers were not formally ministers. One teacher’s claim was based on the Employment Age Discrimination Act. The argument of the other instructor was based on the Individuals with Disabilities Act.
The court concluded that the limited exceptions in Title VII and the ADA which require “religious employers to give preference to members of a particular faith in employing individuals to do work connected with their activities” do not sufficiently accommodate the interests of religious schools in First Amendment.
“When a school with a religious mission entrusts a teacher with the responsibility of educating and forming students in the faith,” Justice Alito wrote, “judicial intervention into disputes between the school and the teacher threatens the school’s independence in a way that the First Amendment does not allow.” As Justice Thomas noted in his concurring opinion, the ministerial exception extends to the employment decisions of religious employers with respect to ministers and laypeople alike to the extent those employees “are entrusted with carrying out the religious mission of the organization.”
Justice Sonia Sotomayor, supported by Justice Ruth Bader Ginsburg, bitterly dissented, claiming that the judge-made ministerial loophole to federal workplace discrimination laws would not enable religious institutions to “to discriminate widely and with impunity for reasons wholly divorced from religious beliefs.” With limited exceptions, California’s FEHA categorically excludes any “religious association or corporation not organized for private profit” from its definition of a covered “employer,” subject to the act.
This precludes any person from alleging bigotry, not even those tasked with serving the religious task of the company. The supreme court decision closed the difference in the protection between federal statute and California rule.
Dan Eaton is a partner with Seltzer Caplan McMahon Vitek’s San Diego law firm where the concentration of his career is on protecting and counseling employers. He is currently an professor at Fowler College of Business at San Diego State University where he conducts courses in corporate ethics and workplace law.