The Supreme Court's Historic Title VII Decision and Its Implications for Educational Institutions

In the midst of Pride Month, the U.S. Supreme Court handed down a landmark decision on June 15, 2020 making it unlawful for employers to discriminate against LGBTQ workers on the basis of sexual orientation or transgender status. The Court’s historic decision raises unique considerations for schools, colleges and universities.

The Decision
The Court’s 6-3 ruling in Bostock v. Clayton County resolves two sets of cases, one involving allegations from gay employees claiming that they were unlawfully fired because of their sexual orientation, and the other from a transgender woman claiming she was unlawfully fired because of her gender identity.

Justice Neil Gorsuch, writing for the majority, opined that discrimination in the workplace on the basis of an individual’s sexual orientation or transgender status is unlawful under Title VII of the Civil Rights Act of 1964's ("Title VII") prohibition of employment discrimination on the basis of “sex” (along with race, color, national origin, and religion). Specifically, Justice Gorsuch wrote that the straightforward application of Title VII means that “sex” includes different treatment based on one’s sexual orientation or gender identity because discrimination on the basis of homosexuality or transgender status requires an employer to intentionally treat individual employees differently “because of sex.”

The justices in dissent accused the Court of legislating, a function specifically reserved for Congress, and going beyond the Title VII drafter’s imagination. Justice Alito, whom Justice Thomas joined, stated: “Many will applaud today’s decision because they agree on policy grounds with the Court’s updating of Title VII. But the question in these cases is not whether discrimination because of sexual orientation or gender identity should be outlawed. The question is whether Congress did that in 1964.” After echoing his concern about the Court’s “transgression of the Constitution’s separation of powers,” Justice Kavanaugh’s dissent also recognized the “important victory” achieved today by those who have worked hard for decades to achieve equal treatment, exhibiting “extraordinary vision, tenacity, and grit.”

The Immediate Impact
This is the first time the Court has recognized both sexual orientation and gender identity as characteristics protected under Title VII. In doing so, the Court upholds various lower court decisions (including those of the Seventh Circuit Court of Appeals and the Second Circuit Court of Appeals) and resolves a split between the federal circuits, definitively answering the question of whether discrimination on the basis of sexual orientation and gender identity is a form of unlawful discrimination based on sex.

This decision validates the position advanced by the Equal Employment Opportunity Commission since at least 2015, as well as the positions of many LGBTQ rights advocates. Further, the timing of the decision gives advocates much to celebrate, especially coming just days after the Trump administration finalized a rule stating that the anti-discrimination protections in the Affordable Care Act do not cover discrimination based on gender identity or sexual orientation.

From a practical standpoint, this decision provides uniform, federal protection for many LGBTQ employees, as opposed to the patchwork of state laws, only some of which prohibit sexual orientation and/or gender identity discrimination in the workplace. For example, Washington, D.C. and 22 states, including Illinois and Minnesota, currently have their own laws prohibiting employment discrimination based on sexual orientation and gender identity. On the opposite end of the spectrum, states like Arizona, Florida, and Indiana do not have any employment laws requiring employers to treat LGBTQ employees equally with respect to sexual orientation and/or transgender status. Wisconsin’s employment discrimination law only protects against sexual orientation discrimination. Regardless, the Court’s decision brings certainty and consistency to employers with operations in multiple jurisdictions.

Employers subject to the requirements of Title VII—including schools, colleges, and universities—should review their policies on equal employment opportunity and revise them as needed. Employers should also consider updating their non-discrimination and anti-harassment training materials or providing specific training to their managers, administrators, supervisors, and human resources personnel regarding sexual orientation and gender identity discrimination in the workplace.

Additional Long Term Impacts for Schools, Colleges, and Universities
The Court’s decision also opens the door to challenges of the definition of “sex” under Title IX of the Education Amendments of 1972 (“Title IX”), the federal law that prohibits sex discrimination at federally funded educational institutions. Indeed, in his dissenting opinion, Justice Alito specifically noted the slippery slope likely to result from the majority’s Title VII opinion, referencing the ruling’s “far-reaching consequences” for colleges and universities. That individuals seeking to enforce Title IX’s prohibition against sex discrimination will look to the Supreme Court’s Bostock decision is even more likely given the Department of Education’s failure to define sex—much to the frustration of LGBTQ advocates—in its recently released Title IX regulations.

While the question of whether “sex” under Title IX includes sexual orientation and gender identity winds its way through the courts, colleges and universities should expect an uptick of internal and external Title IX challenges by students claiming sex discrimination—including with regard to residence hall room and bathroom assignments and participation in sports and extracurricular activities—based on sexual orientation and gender identity. In addition to reviewing their employment policies, colleges and universities should review their student policies and procedures and be prepared to address questions relating to the same in light of the Supreme Court’s recent decision.

For assistance in updating policies or with employee training, please contact your local Quarles & Brady attorney or:

• Lindsey Davis: (414) 277-3073 / lindsey.davis@quarles.com
• Brenna Wildt: (414) 277-5328 / brenna.wildt@quarles.com