Bostock v. Clayton County
President Biden signed an Executive Order on January 25, 2021, requiring protections of LGBTQ people in housing, health care, and education. The Executive Order cites the recent Supreme Court decision, Bostock v. Clayton County, that held that the prohibition against sex discrimination in the Equal Employment Act prohibits discrimination on the basis of sexual orientation and gender identity. The Executive Order requires the applicable federal agencies, including HUD, to promulgate actions consistent with Bostock and the various civil rights laws. This Executive Order will result in new HUD regulations explaining the protections of LGBTQ persons under the Fair Housing Act.
We believe there will be a notable increase in testing and enforcement of the new fair housing protections of LGBTQ people. Whenever changes in regulations occur, housing providers can expect an increase in testing by housing advocacy agencies. We will provide updates on these regulations as they become available. To avoid unnecessary liability, all housing providers should be educated about these changes, and ensure that all employees are properly trained and prepared for testers. For more information on this groundbreaking case and what to expect check out our youtube video below.”
July 2020 Original Post
The Supreme Court has had a pending case involving sexual orientation and gender identity. In a very recent historic decision, Bostock v. Clayton County, Georgia, 590, U.S. ___ (2020), (“Bostock”) the U.S. Supreme Court expanded its interpretation of Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination. This law prohibits discrimination on the basis of sex, but not explicitly on the basis of sexual orientation or gender identity. The Court has determined in this decision that Title VII’s protection of employees on the basis of sex also protects employees on the basis of sexual orientation and gender identity.
Employment Discrimination and Fair Housing Discrimination
Employment discrimination cases are filed and litigated at a much higher rate than housing cases, which is why courts often apply the legal analyses from employment cases to Fair Housing Act cases. This decision is so important to FHI’s Community because like Title VII, the Fair Housing Act also prohibits sex discrimination.
Therefore, we can confidently assume that courts in future FHA (Fair Housing Act) cases will also extend legal protections to individuals on the basis of sexual orientation and gender identity.
Title VII Protection for Gay and Transgender Employees
The facts of this case were not disputed and involved the termination of three employees by three different employers. Two employees were fired because they are gay. The third employee was fired because she presented as a male when hired, but later informed her employer she planned to live and work as a woman. The case reached the Supreme Court due to conflicting decisions from three Circuit Courts. The Eleventh Circuit held that Title VII does not prohibit employers from firing employees for being gay, while the Second and Sixth Circuits held that Title VII protects gay and transgender employees.
The basic premise of the Bostock decision is that an employer who fires an employee because the employee is gay or transgender violates Title VII protections because the termination is based at least in part on sex. The Court defines sex as referring only to the biological distinctions between male and female and then applies a “but for” causation analysis.
Under this analysis, the Court examines whether the outcome would have happened “but for” the sex of the employee. The Court considers the example of an employer with two employees, both of whom are attracted to men. If the employees are basically the same in all respects except one is a man and the other is a woman, and the employer fires the man because he is attracted to men, the termination is based upon a trait, attraction to males, that is permitted in female employees, but not males.
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Therefore, the Court reasons, the employee is being fired, at least in part, because of his sex. The Court applies another example for explaining how sex is a factor in cases involving gender identity in which an employer has two otherwise identical employees, both of who identify as female, and fires one because that employee identified as male at birth.
The Court reviews past Title VII decisions for its conclusion that Title VII prohibits employment actions where “changing the employee’s sex would have yielded a different choice by the employer.”
Sexual Orientation and Gender Identity Future Litigation
The Court acknowledges there may be additional issues that the Court will need to address in later cases involving religious freedom and the use of locker rooms and bathrooms. Those issues were not involved with this case and will likely rely on different legal issues instead of Title VII.
Many state and local fair housing laws and HUD’s Equal Access regulations (applicable only to HUD-insured and subsidized housing) already prohibit housing discrimination against persons due to their sexual orientation and gender identity.
However, a large portion of rental properties are not subject to these existing laws. Bostock is so significant because LGBTQ individuals will likely now be protected from housing discrimination throughout our country in all housing covered by the federal Fair Housing Act.
This case highlights the intrinsic value of ongoing Fair Housing training and education. That is why it is so important to keep your team in tune with Fair Housing current events and provide subsequent training for real-world job applications.
- Fair Housing and Communication – Pt 2 – Communicating with Prospects
- Fair Housing and Communication – Pt 1-Communicating with Employees
- Fair Housing-Consult an Attorney
- Fair Housing and Sexual Harassment – Steps For Prevention
- The Supreme Court’s Ruling on Sexual Orientation and Gender Identity
Fair Housing and the Supreme Court Ruling Episode Transcript
Jonathan Saar: Hello everyone. And welcome to the Fair Housing Insiders, Episode number eight. Just before we get into our show, as always, we have just a short disclaimer, just to remind you about what our show is on. So this show addresses some fair housing questions that often come from our community. And we want to remind our audience that this content does not reflect any personal, religious, or political views.
Jonathan Saar: For today's show, we're going to recap the recent Supreme Court decision, and how it's going to affect the housing industry. So remember our comments are recommendations, and they are not legal advice. It's always good to confer with legal counsel. So we're grateful for you being here today. So let's get into our show.
Jonathan Saar: Good day to everyone. Welcome to Episode number eight, the Supreme Court's Ruling on Sexual Orientation and Gender Identity. And with me today, as always, Kathy Williams, welcome to the show.
Kathy Williams: Hey, Jonathan, it's good to be here. This is a really important case. So I am delighted we can talk to our community about what it means for them.
Jonathan Saar: Absolutely. Yes, major breaking news recently, and a lot in the industry had questions about how it's going to affect them today, how this law will affect them in the future. So we look forward to your feedback and your comments as to the summary of the case, and what housing providers should be planning for. So we've got a set of nice questions to go over.
Jonathan Saar: So the first one, Kathy, what did the court determine regarding Title six protection of employees? What were your thoughts on that?
Kathy Williams: Well, it was actually Title seven.
Jonathan Saar: Title seven, all right Kathy, that's important. Title seven, sorry.
Kathy Williams: Which is, we also call that the Employment Discrimination Act. So we can call it either one. The easiest term is just call it Title seven. And it is about protecting employees in the workplace from discrimination. And it has a set of protected categories, just the way the Fair Housing Act has. And in Title seven, one of the protected categories is sex. And this case, from the Supreme Court, is about defining what the term sex, which is usually seen as gender discrimination, what does that mean when we look at it, and we consider whether that term, sex discrimination, protects people based on gender identity and sexual orientation.
Jonathan Saar: Right, right. Very good. Thank you. And so it was a particular case that was being ruled on, and based out of Georgia too. So it was the Bostock case, if I pronounced that right. So why was that so significant to the housing industry, this particular case?
Kathy Williams: Well, this case found that under Title seven, people based on their sexual orientation and gender identity are protected from discrimination in employment. And the reason it is so important for fair housing purposes is the same protected category sex, under the Fair Housing Act, will also now be expanded to protect people based on gender identity and sexual orientation.
Jonathan Saar: Okay. Very good. Thank you for that explanation. So I think you might've touched on it maybe a little bit. Let's dive in and just a bit deeper. Because a lot of people, when they first saw that, so it was employment-based, and may have not immediately made that same connection to how this particular case related to housing, and in effect, how it relates to all of us in the housing industry. So how did the two relate? Any other deeper thoughts, comments on that?
Kathy Williams: Well historically, there have always been a lot more employment cases, thousands and thousands of employment cases, many of which have been litigated at every level of the courts. So in the world of fair housing, and trying to decide how cases get analyzed, how the facts apply to the law, there has always been a very close connection to how a court will look at an employment discrimination case, and how it looks at and analyzes a fair housing case. There just aren't that many fair housing cases. So they tend to look to the courts that have made these decisions in employment.
Kathy Williams: So likewise, when the Supreme Court says that the definition of sex now also protects people based on sexual orientation and gender identity, that same application will be applied in the housing context, when we look at the protections offered under that now large and growing definition of sex discrimination.
Jonathan Saar: Okay. That was helpful. So really, now correct me if I'm not wording this correctly, so both under the umbrella of civil rights overall, so employment and housing, and what's protected under both. Is that an accurate statement then?
Kathy Williams: Yes. In fact, the Employment Discrimination Act, which we talked about Title seven of the Civil Rights Act of 1964, was followed, in 1968, by the Civil Rights Act of 1968. And Title eight of that is the Fair Housing Act. So they even have the same title basically, when they were created, and then adopted by Congress as the law of the land.
Jonathan Saar: Okay, perfect. So a little bit of history lesson for us today. Fair housing, employment discrimination, and history of the Supreme Court in our judicial system. So that's excellent. Thank you for elaborating a little bit on that. So let's go back to the case just for a minute. Now there was a lot of particulars that were involved. Can you just give us a brief history of what you found interesting about the case and the decision that came about?
Kathy Williams: Well, actually this one case that the Supreme Court decided was made up of three cases that came up from the lower courts. And what happened is there were three separate employees who were all fired. And one was fired because of sexual orientation. And that was in the 11th Circuit. And that court decided that sexual orientation was not protected by Title seven. There were two other cases that were decided by two different circuit courts. And in both of those cases, one of which involved an employee fired for sexual orientation, and the third case was about an employee who was fired for gender identity. And in those two cases, the circuit court said yes, Title seven protections against sex discrimination also apply to sexual orientation and gender identity.
Kathy Williams: So that conflict went up to the Supreme Court. So there were really three cases. But the case will probably be known for the employee from Georgia, whose name is Bostock.
Jonathan Saar: Got it, got it. Okay. Thank you. So some interesting details and how that all came about. Now when you and I were preparing for this program and for this report, you used the expression causation analysis. So that's not a term that I don't think I've ever used in everyday conversation. So can you give us a little bit of an explanation of what a causation analysis is, and how it related to this particular case?
Kathy Williams: Well, one of the factors that always has to be considered is, was the protected category a factor, how important was that factor in the employer deciding to fire the employee. And so that's when we get into what caused the termination. And in this case, that was, the decision was written by Justice Gorsuch. He decided that when we look at sex discrimination cases, we are looking at something called a but-for analysis.
Kathy Williams: So the question is, but for the sex of these employees, would they have been fired? And there's a lot of discussion and argument about, well, it really wasn't about their sex. It was about their sexual orientation or gender identity. But the court, and I thought it used two excellent examples to prove the point that but for the sex of these employees, they would not have been fired.
Kathy Williams: And the court uses these two examples. We have two male employees, both of which are very good employees, and equally situated when we look at their standing as employees. And one is a male and one is a female. And the question is, if we look at the trait of whether those employees are attracted to males and the female employee would not be fired for that trait, but the male employee would be fired for that trait. Then we're saying that the difference is their sex, their gender. The female employee gets to continue employment. The male employee gets fired for the trait of being attracted to a man. Therefore the court says, when you look at it that way, it is their gender, their sex, that is causing the difference, the discrimination, in how they're being treated.
Kathy Williams: And then the court went on to use another example of gender identity discrimination. And it said, okay, we have two employees, both of whom are equal in stature as employees, and they're both female, but one of those employees gets fired because that employee identified as a male at his birth. So the difference in their treatment is they're both females at the time they get fired, but one was a male at the time of his birth. So it is his sex that is causing the termination and therefore it is, but for his sex, he would not have been fired. And that is a violation, the Supreme Court found, of Title seven. So I think when we look at it, using those examples, the point was very well made by the court of why it found sex discrimination in these terminations.
Jonathan Saar: Okay. Very good. So what caused the termination is really what the court was trying to identify and explain as far as its ruling and decision for this particular case. That's good. Thank you for that.
Jonathan Saar: Well I know that the housing community is very grateful for your many years of experience as a fair housing attorney, to help explain these things and make sure we understand what the law is. And really, it leads to our next question.
Jonathan Saar: So the housing industry, as they've seen this, and read about the decision, they wonder, so what's next? So I'm a property manager, I'm an HR manager, I'm a training director, and I'm teaching fair housing. I'm providing fair housing training for my team. So what's next? What do we, as trainers, need to do in property management companies? How is this going to impact fair housing, and what are some things that our audience needs to think about, Kathy?
Kathy Williams: Well, I think it will impact it, and in fairly immediately, because the definition of sex that's being used now, due to this decision by the Supreme Court, should be automatically adopted into the world of fair housing, and the definition of sex under the Fair Housing Act. There are a lot of laws around the country, state and local laws, that protect residents and applicants from discrimination in housing, based on their sexual orientation and gender identity. There's a federal regulation that applies to all federally-funded and insured multifamily housing, that also protects people based on sexual orientation and gender identity, and that regulation also protects based on marital status.
Kathy Williams: For those housing providers that are not covered by those existing laws and regulations, they may or may not have been training, thinking about adapting policies prohibiting discrimination against applicants and against residents, based on sexual orientation and gender identity. I think it's very important that all housing providers begin the process of including that information in their training, and certainly doing supervision and policy management to make sure that one of their employees does not get their property in trouble with this new and expanded definition of sex discrimination.
Jonathan Saar: Okay. Very good. So be proactive, really. Be proactive. Don't don't ever be reactive. And we, in all of our shows, I think we've always highlighted that, no matter what we're talking about, it's always important to be proactive, put policy in place. That way you keep your company, your team, and your residents, everyone in compliance with the law.
Jonathan Saar: So we thank you so much, Kathy. I'm sure this will lead to other conversations in future episodes on this topic. But this has been a great, great summary on what the Supreme Court recently released, and your professional opinion and comments as an attorney, and how that's going to affect the housing industry. So thank you so much. Thank you for everyone for being here. Remember to check out FairHousingInstitute.com. If you are in need of online courses, you'll see a whole list there that is available to you.
Jonathan Saar: And for those of you who are listening, who are customers, we thank you so much. Please take a moment and subscribe to our channel. And if you've enjoyed this episode, definitely give it a thumbs up. We appreciate being able to put together these complimentary educational sessions for you. This will conclude another episode of the Fair Housing Insiders, Episode number eight. We look forward to our next show. Thank you everyone.