, according to a landmark decision by the U.S. Supreme Court. The Court specifically held that an employer who fires an individual merely for being gay or transgender violates the federal anti-discrimination law.
The Court’s decision is a significant win for the LGBT community. At the same time, it is helpful for employers because it brings consistency to a controversial area of federal employment law.
Definition of “Sex” Under Title VII
Title VII of the Civil Rights Act of 1964 (Title VII) provides in pertinent part: “It shall be an unlawful employment practice for an employer . . . to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” Because the law does not define “sex,” the federal courts of appeal were divided regarding the appropriate legal standard for establishing claims of gender identity discrimination.
Federal agencies have also struggled to get on the same page with regard to LGBT rights in the workplace. Under President Barak Obama, then-Attorney General Eric Holderstating that the Department of Justice had “determined that the best reading of Title VII’s prohibition of sex discrimination is that it encompasses discrimination based on gender identity, including transgender status.” However, under President Donald Trump, the DOJ reversed course and revoked the guidance. Meanwhile, the Employment Opportunity Commission (EEOC) has consistently taken the position that against employment discrimination.
Supreme Court Recognizes LGBT Workplace Protections
The Supreme Court decision involves three consolidated cases. Two of the cases, Altitude Express Inc. v. Zarda and Bostock v. Clayton County, Georgia, alleged discrimination based on sexual orientation, while the third case, R.G. & G.R. Harris Funeral Homes Inc. v. EEOC, et al., claimed discrimination based on transgender status.
By a vote of 6-3, the Court held that Title VII’s ban on discrimination protects gay, lesbian and transgender employees. “Today, we must decide whether an employer can fire someone simply for being homosexual or transgender. The answer is clear,” Justice Neil Gorsuch wrote on behalf of the majority. “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.”
In reaching its decision, the Court acknowledged that Congress likely did not have LGBT workers in mind when it wrote the anti-discrimination law more than five decades ago. Nonetheless, it held that the statute clearly protects them.
“Those who adopted the Civil Rights Act might not have anticipated their work would lead to this particular result. Likely, they weren’t thinking about many of the Act’s consequences that have become apparent over the years, including its prohibition against discrimination on the basis of motherhood or its ban on the sexual harassment of male employees,” Justice Gorsuch wrote. “But the limits of the drafters’ imagination supply no reason to ignore the law’s demands. When the express terms of a statute give us one answer and extratextual considerations suggest another, it’s no contest. Only the written word is the law, and all persons are entitled to its benefit.”
The Court’s decision also makes it clear that “the plaintiff’s sex need not be the sole or primary cause of the employer’s adverse action” for Title VII to apply. “[I]t is of no significance if another factor, such as the plaintiff's attraction to the same sex or presentation as a different sex from the one assigned at birth, might also be at work, or even play a more important role in the employer's decision,” Justice Gorsuch explained. The Court also emphasized that employers can’t escape liability by demonstrating that it treats males and females comparably as groups. “An employer who intentionally fires an individual homosexual or transgender employee in part because of that individual's sex violates the law even if the employer is willing to subject all male and female homosexual or transgender employees to the same rule,” Gorsuch wrote.
Samuel Alito Jr. wrote a dissent, which was joined by Justice Clarence Thomas. Justice Brett Kavanaugh authored a separate dissent. “There is only one word for what the court has done today: legislation,” Justice Alito argued. “The document that the Court releases is in the form of a judicial opinion interpreting a statute, but that is deceptive.”
Notably, the Court did not address how its decision will impact employers that maintain that their employment decisions were based on sincerely held religious beliefs. As Justice Gorsuch stated, “[H]ow these doctrines protecting religious liberty interact with Title VII are questions for future cases…”
The Supreme Court’s decision expands the scope of sexual discrimination protections for gay and transgender workers. While the New Jersey Law Against Discrimination (NJLAD) and other state laws already include express workplace protections for LGBT individuals, there is now federal protection as well. Going forward, employers can likely expect an uptick in the filing of EEOC charges alleging sexual orientation or gender identity discrimination.
With that in mind, it is advisable for employers to review their workplace policies regarding gender identity and sexual orientation harassment. To avoid unintended liability, is imperative that all human resource staff and managers/supervisors understand how to properly respond to allegations of discrimination.