LGBTQ Discrimination in Missouri
The Supreme Court's landmark decision in Bostock v. Clayton County, gives LGBTQ employees in Missouri the ability to brings claims for discrimination against employers.
Bostock v. Clayton County
On June 15, 2020, the United States Supreme Court issued a major victory for LGBTQ employees. The majority opinion, penned by Justice Neil Gorsuch, declared that Title VII of the 1964 Civil Right Act makes it unlawful to discriminate against LGBTQ workers. Employers are now prohibited from discriminating against LGBTQ employees and those who do so are subject to Title VII’s considerable reach and remedies against unequal treatment.
The Court rested it's decision on the the rationale that LGBTQ discrimination is a form of sex discrimination, as defined in Title VII. Specifically, it stated that “the straightforward application of Title VII’s terms” means that “sex” includes different treatment based on one’s homosexuality or transgender status.
Before the Court's decision in Bostock, LGBTQ workers had to rely on a patchwork of state and local laws for protection against workplace discrimination. In states like Missouri, which offer no protections for sexual orientation or gender identity, many workers were simply left in a lurch. For instance, the Missouri Supreme Court has previously held that sexual orientation is not a protected category within the ambit of “sex” under the Missouri Human Rights Act.
“I think it's surprising to a lot of people because of the strides that the LGBTQ community has made." Stephen Eisele, Executive Director of PROMO Missouri told KSDK, "We sometimes take that for granted, and certainly we know that employment discrimination is something that happens regularly in our community.”
Now, thanks to Bostock, many of Missouri's LGBTQ employees who were previously denied access to legal recourse for workplace discrimination, can file their complaints directly with the Equal Employment Opportunity Commission (EEOC).
How Missouri Workers Can Bring a LGBTQ Discrimination Claim
As stated above, prior to the Bostock decision, LBGTQ employees in the State of Missouri had few options when it came to seeking redress for discrimination. Now claims can be brought through a Charge of Discrimination filed with the EEOC.
It is important to note that a Charge of Discrimination must be filed within 180 days of the reported conduct. If an employee misses the 180 day deadline, they will likely lose their ability to bring an action claim against their employer. Additionally, claims for sex discrimination filed under Title VII are limited to employers with more than 15 employees. If the matter cannot be resolved through the EEOC process, the employee can request a Right To Sue letter and file a lawsuit in federal court against their employer.
An employee cannot sue for LGBTQ discrimination in federal court before first filing a Charge of Discrimination with the EEOC.
What Is Considered Discrimination?
A claim for discrimination normally hinges on whether an employer took an adverse employment action against a worker based on their protected status, such as sex. An employee can bring a claim if their employer either took a “tangible employment action" against them or subjected them to a "hostile work environment."
Tangible Employment Action
These are typically considered negative tangible employment actions in discrimination and retaliation cases:
Retaliation for Reporting Discriminatory Conduct
Non-selection for a job
Failure to promote
Denial of a leave request
In addition to the above examples, courts and administrative agencies may recognize other types of tangible employment actions. However, employees generally have to prove that the action caused a significant change in compensation, benefits, or work duties.
Hostile Work Environment
Adverse employment actions are not limited to ultimate actions such as termination or demotion. If an employer has taken an action or engaged in a course or pattern of conduct that, taken as a whole, materially and adversely affected the terms, conditions, or privileges of an employee's employment, then they are subject to liability under Title VII. This is called a Hostile Work Environment.
A Hostile Work Environment includes conduct that is reasonably likely to impair a reasonable employee’s job performance or prospects for advancement or promotion.
Some Limitations to the Bostock Decision
The Supreme Court did clarify that its ruling in Bostock applies only to employment decisions and does not purport to address issues like sex-segregated bathrooms and locker rooms. Likewise, the ruling discussed how this decision may intersect with religious liberties and laws such as the Religious Freedom Restoration Act of 1993 and Title VII’s express statutory exemption for religious organizations. These issues, however, were not before the Court and thus “how these doctrines protecting religious liberty interact with Title VII are questions for future cases too.”
Sex-Segregated Bathrooms - G.G. v. Glouchester County School Bd.
It should be noted that the Supreme Court was supposed to rule on a case involving bathroom access in G.G. v. Glouchester County School Bd. However, instead of ruling on this case, the Supreme Court remanded it back to the lower Fourth Circuit Court of Appeals. Relying on the Supreme Court's decision in Bostock, the Fourth Circuit ruled that the school board had practiced sex-based discrimination when it prohibited a transgender teen from using the bathroom which aligned with his gender identity.
A Note On Illinois LGBTQ Claims
The Illinois Human Rights Act has protected against discrimination in employment, housing, financial credit, and public accommodations, as well as sexual harassment in employment and higher education even before the Bostock decision. The Act prohibits discrimination based on someone's actual or perceived sexual orientation, which is defined to include heterosexuality, homosexuality, bisexuality, and gender-related identity.
If you feel that you have been a victim of discrimination or sexual harassment, you should talk to a lawyer about filing a charge with the Illinois Department of Human Rights, as well as the EEOC.
CONTACT DAVIS & GRAS, LLC
If you have been the victim of LGBTQ discrimination in the workplace, call Davis & Gras, LLC for a free case evaluation. 314-888-5858.