Can a worker be fired just because they are gay?

| Dec 15, 2020 | Firm News

For decades, state and federal laws have protected workers from certain kinds of discrimination in the workplace. The federal Civil Rights Act of 1964, the Kentucky Civil Rights Act and other laws prohibit workplace discrimination on the basis of sex, religion, national origin, disability and age.

A recent Supreme Court decision confirmed what many legal analysts and civil rights activists have long argued when it held that the federal Civil Rights Act prohibits workplace discrimination on the basis of sexual orientation and gender identity.

What is unlawful discrimination?

Employers must discriminate between workers all the time. They can’t hire every candidate they meet, and they most likely can’t promote every employee they have, so they have to decide to treat some workers differently.

As employers have a legitimate business reason for it, discrimination in employment-related actions is usually perfectly legal. However, when employers take an employment-related action against a worker because of the worker’s race, religion, sex or other protected category, the employer commits unlawful discrimination.

Bostock v. Clayton County

Because the Civil Rights Act did not single out sexual orientation or gender identity, courts had long held that these attributes were not protected by the law. This changed with the recent decision in Bostock v. Clayton County.

The case involved several workers who were discriminated against because of their sexual orientation or gender identity. Attorneys for the workers convinced the court that these types of discrimination were in fact a variation on sex discrimination.

An example

Imagine two workers, Sonia and Ricardo, are employees of ABC Corp., where they work under supervisor Oscar. Outside of work, Ricardo is married to a woman. Sonia is also married to a woman. Both Sonia and Ricardo are exemplary employees, but Oscar fires Sonia after learning that she is married to a woman. He replaces her with a new employee, Margo, a woman who is married to a man.

Sonia claims that she was wrongfully terminated on the basis of sex. Oscar denies that he fired Sonia because she is a woman. In fact, he says, he replaced her with another woman.

At one time, Oscar’s argument might have been enough to defeat Sonia’s claim. The Bostock decision changed this.

Sonia can show that Oscar fired her because she was married to a woman. Oscar did not fire Ricardo, even though Ricardo is also married to a woman. Both Ricardo and Sonia were great employees. In Oscar’s eyes, the difference between them was that Ricardo is a man and Sonia is a woman. His decision to fire Sonia was a case of unlawful discrimination.

Proving unlawful discrimination

Of course, the evidence in most cases is not as neat as it is in our example. It is often difficult to prove that an employer had a bad motive in taking action against one worker and not another. Employers can often come up with some explanation for their actions that, at least, sounds like they had a legitimate business reason for them.

It is very important for workers who believe they have been the victims of unlawful discrimination to gather evidence that can prove their case. It may be important to gather records showing that their work performance was always satisfactory. A record of insults or other statements showing the employer’s discriminatory motives would also make for good evidence.

Even with the Supreme Court’s decision, many Kentuckians still face unlawful discrimination at work. A skilled employment lawyer can help workers understand their rights and legal options.