Title VII of the Civil Rights Act prohibits discrimination based on “sex”. But only as of today, did the Supreme Court of the United States (SCOTUS) clarify that “sex” includes not only traditional gender designations of male or female, but also those who self-identify as LGBT. This is widely regarded as a landmark decision. But this opinion did not alter some troubling aspects of Title VII for advocates of inclusiveness.
Title VII generally applies only to actions of employers. And only “employees” are proper plaintiffs to bring the lawsuit. So. if you are outside of the employer-employee relationship, (e.g. an advocacy group) do not look for Title VII or this opinion for relief.
And even if you are an aggrieved employee, you have the burden to establish there was an “intent” to discriminate. An employer may come up with any number of reasons for a firing or lack of a promotion. There is subjectivity in so many performance evaluations it does not take much imagination to come up with an alternate basis even if discriminatory intent existed. If an NFL club had a coach that announced in June that he or she was transgender, and next month he or she was fired, the club could claim the reason for firing was a volume of negative reports in the employee file over the prior year. Without documented proof or evidence of discriminatory intent, an employee is hard pressed to prove what the employer was thinking at the time of the firing and that sex was the basis for the firing.
SCOTUS also did not face the most challenging or the more likely circumstance. It only faced the unlikely facts where the employers did not specifically argue that there was a non-discriminatory basis for firing the gay plaintiffs. SCOTUS did not face defiant employers who claimed poor job performance or the recession or a catastrophic losses from a natural disaster caused the firing. Expect employers to double down on documented alternate reasons for a firing. Expect them to increase manager training to avoid negative comments about race, sex, or other references to a protected status.
Title VII also exempts those employers with less than 15 employees. There are thousands of small businesses throughout America that avoid this federal law on sheer employee count. Indeed, the very small company with a handful of employees is most likely to only hire those they feel most “comfortable”.
Sure, you may find a case that provide exceptions or expansions to LGBT protections. But when the employee considers whether to bring a Title VII case, he or she is likely to consider the cost of litigation, the chances of success weighed against the potential to be blackballed from future employment. Most lawyers who consider taking such a case on a contingency basis also have to decide if a settlement or jury verdict is likely to be well beyond the cost of litigation and opportunity costs.
These considerations lead me to the conclusion that while the SCOTUS decision is clarifying and expands the pool of plaintiffs, it does not necessarily lead to more successes in court. Roger M. Groves is a Washington DC attorney and business consultant. Formerly a tax judge, he is nationally networked with law firms and financial advisors in the sports and entertainment industry. He can be reached at (571) 228-0871, roger@sports-apps.com or 1629 K Street N.W., Suite 300, Washington DC, 20006.