On June 15, 2020, the Supreme Court ruled that an employer who terminates an employee because that employee is gay or transgender violates Title VII of the Civil Rights Act of 1964. Writing for the majority, Trump appointee Justice Gorsuch stated: “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.”
Title VII in part provides that employers may not “fail or refuse to hire or . . . discharge any individual, or otherwise . . . discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s . . . sex.” The question of whether Title VII’s protections extended to LGBT individuals hinged on one word—sex. Gorsuch stated in his opinion that “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.” Gorsuch provided the following example: an employer has two employees and both employees are attracted to men, however, one employee is a man and one employee is a woman. Gorsuch continued: “If the employer fires the male employee for no reason other than the fact he is attracted to men, the employer discriminates against him for traits or actions it tolerates in his female colleague.”
The Court’s ruling clarified that sex need not be the only factor or even the main factor in an adverse employment action to make that action illegal and subject the employer to liability. Thus, in an adverse employment decision, the fact that other factors were considered, such as performance, will not save an employer if the employee’s sexual orientation or gender identity is shown to be a consideration.
The Court did acknowledge that some employers may fear complying with Title VII may require them to violate their religious convictions. The Court noted that “worries about how Title VII may intersect with religious liberties are nothing new.” To address these concerns, Title VII has specific provisions for religious based organizations; additionally, there are First Amendment protections as well as the expansive protections of the Religious Freedom Restoration Act of 1993, the Court explained. However, the Court noted that these questions were not before the Court, and it therefore did not make a decision regarding Title VII and religious liberties.
Joining the majority were Chief Justice Roberts and Justices Gorsuch, Kagan, Sotomayor, Breyer and Ginsberg. Justices Thomas, Alito and Kavanaugh dissented.
There has been a lack of clarity as to this question surrounding Title VII and LGBT discrimination for some time. The Supreme Court’s decision brings absolute clarity on the issue. Employers cannot discriminate against gay or transgender employees just as they cannot discriminate based upon any other protected classifications such as race, religion, or national origin. Employers should begin reviewing their policies and ensure that they are up to date. It is our recommendation that employers specifically mention sexual orientation and gender identity as protected classes under their equal employment opportunity policies and harassment policies. Employers should consider specific training to ensure that their employees are fully aware of Title VII and its protections.
This update was prepared by attorney Jeff Worley. This update does not constitute legal advice and has been prepared for informational purposes only. Please contact Jeff directly with questions about your specific situation.