Landmark Supreme Court Decision Extends Discrimination Protection to LGBTQ Individuals

On June 15, 2020, the U.S. Supreme Court ruled that Title VII of the Civil Rights Act of 1964 (Title VII) protects gay and transgender workers from workplace discrimination. The 6-3 decision reviewed three consolidated cases, Bostock v. Clayton County, Georgia, Altitude Express Inc. v. Zarda, and R.G. Harris Funeral Homes Inc. v. EEOC (Justices Alito, Thomas and Kavanaugh dissented) and held that an employer who fires an individual because that individual is gay or transgender violates Title VII. This is the first time that sexual orientation and gender identity discrimination are prohibited by federal law (some states and municipalities had previously enacted this protection.)

Case Highlights

Under Title VII it is “unlawful . . . 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." The Court found the term "sex" referred to the biological distinctions between male and female. Using Title VII’s “but for” causation standard, the majority outlined that but for a person’s sex an employer cannot consider a person’s sexual orientation or gender identity. Justice Gorsuch wrote, “[I]f changing the employee’s sex would have yielded a different choice by the employer – a statutory violation has occurred.”
 
That an employer may discriminate against all homosexual or all transgender employees, whether male or female, is not a defense, since, as explained by the Court, Title VII prohibits discrimination against individuals, not groups as a whole. So, employers cannot avoid liability just by citing some other factor that contributed to its challenged employment decision as “long as the plaintiff 's sex was one but-for cause of that decision, that is enough to trigger the law."
 
Note that Title VII does maintain carve-outs for religious institutions "to claims concerning the employment relationship between a religious institution and its ministers."

Employer Action Items

Employers who have not addressed the issue of sexual orientation or gender identity in their handbooks, policies, and procedures should revise those items to clearly outline that discrimination based on sexual orientation and gender identity will not be tolerated and is subject to disciplinary action. If you already have policies in place that prohibit discrimination or harassment against employees on the basis of sexual orientation or gender identity consider auditing those existing policies. 

All employers should use this decision and Pride Month to educate employees on the new laws, new policies, policy enforcement, and the concepts of gender identity and sexual orientation. Outlining what these terms mean, how they can manifest in employment, and what kinds of actions would not be tolerated are a few items that could be included in the training for managers and employees.

By educating their workforce, and creating and enforcing these policies employers can hopefully avoid Title VII claims, payments of back wages, compensatory damages, punitive damages and attorneys’ fees.