Supreme Court Finds Title VII Prohibits Workplace Discrimination Based on Sexual Orientation and Gender Identity
Labor & Employment Alert 06/16/20 Kelly Lyon Davis, Brenna M. Wildt
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.
This is the first time the Court has recognized both sexual orientation and gender identity as characteristics protected under Title VII of the Civil Rights Act of 1964 (“Title VII”). In doing so, the Court upholds various lower court decisions (Seventh Circuit Court of Appeals and Second Circuit) 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.
From a social standpoint, this decision validates the positions of many LGBTQ rights advocates and the position advanced by the Equal Employment Opportunity Commission since at least 2015. The timing of this decision falling in the midst of Pride Month also 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 today brings certainty and consistency to employers with operations in multiple jurisdictions.
This 6-3 ruling 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’s prohibition of employment discrimination on the basis of “sex” (along with race, color, national origin, and religion). Specifically, 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 majority foreshadowed possible future litigation involving religious employers, stating “how these doctrines protecting religious liberty interact with Title VII are questions for future cases too.”
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, states: “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.”
Next Steps for Employers
Employers subject to the requirements of Title VII 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, supervisors, and human resources personnel regarding sexual orientation and gender identity discrimination in the workplace.
For assistance in updating policies or with employee training, please contact your local Quarles & Brady attorney or: