A Landmark Victory for LGBT Employees: What Employers Need to Know
by Cary Kinkead
In a landmark 6-3 decision, the Supreme Court of the United States ruled that Title VII of the Civil Rights Act of 1964 prohibits discrimination based on sexual orientation and gender identity. Under the Court’s ruling, Title VII’s ban on discrimination protects gay, lesbian and transgender employees.
In this momentous ruling, the Court consolidated three separate employment cases, all involving long-term employees who were terminated allegedly due to their sexual orientation or transgender status. All three plaintiffs relied on the text of Title VII in their lawsuits against their former employers to argue that discrimination based on sexual orientation or gender identity was discrimination “because of sex.”
In Altitude Express, Inc. v. Zarda, Donald Zarda, a skydiving instructor, was terminated days after informing a client of his sexual orientation.1 His employer alleged he was fired for sharing inappropriate information about his personal life with a client. The Second Circuit agreed with Zarda that Title VII prohibits discrimination based on sexual orientation, finding it to be a “subset of sex discrimination.” In Bostock v. Clayton County, Georgia, Gerald Bostock, a gay man who worked as a child welfare services coordinator for the county juvenile court of Clayton County, Georgia, was terminated allegedly for engaging in conduct unbecoming of a county employee.2Mr. Bostock sued, arguing he was fired due to his participation in a gay softball league. The Eleventh Circuit ruled the opposite way of Zarda, finding Title VII does not apply to discrimination based on sexual orientation. Finally, in R.G. & G.R. Harris Funeral Homes, Inc. v. Equal Employment Opportunity Commission, Aimee Stephens, a funeral director and embalmer who originally presented as a man upon hiring, was terminated two weeks after informing her employer of her sex reassignment surgery and plan to work and live as a woman.3 The Sixth Circuit found that Title VII does encompass discrimination based on transgender status. Given this split amongst the circuit courts, the Supreme Court’s June 15, 2020 opinion ventured to render a clear determination as to Title VII’s definition of discrimination based on “sex.”
A Supreme Court Case of First Impression
Justice Neil Gorsuch, writing for the majority, framed the question as a straightforward one: “Today, we must decide whether an employer can fire someone simply for being homosexual or transgender.” Justice Gorsuch emphasized that the answer is clear and reasoned, “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.” Justice Gorsuch further reasoned that when an employer fires an employee for being homosexual or transgender, that employer “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.”
Justice Gorsuch dismissed the employers’ argument that sexual orientation and transgender status are not expressly defined within Title VII by reasoning that because Congress established a broad rule without exceptions, the courts should apply the rule broadly. Justice Gorsuch did acknowledge that Congress may not have intended this particular result, but that many applications of Title VII’s sex provision were unanticipated when Congress passed the law in 1964, such as its prohibition against discrimination on the basis of motherhood.
Currently, 23 states4, including California and Washington, already have some form of statutory protections for sexual orientation and gender identity. Thus, even before this ruling, it was unlawful for employers in both California and Washington to discriminate against employees on the basis of sexual orientation or gender identity. Now, California and Washington employees will have recourse available through both state and federal courts. The major impact of this ruling will fall on those states that did not previously provide such protections.5
California and Washington employers must continue to make sure their employee handbooks and policies, particularly equal opportunity, harassment, and discrimination policies, reflect and comply with both state and federal law. Employers must continue to recognize that it is unlawful to discriminate against employees based on their sexual orientation or gender identity. All higher-level employees with management and supervisory roles must understand these prohibitions and take all actions necessary to prevent discrimination of all forms in the workplace. Employers should also update training programs to ensure trainings include recognition of issues related to sexual orientation and gender identity discrimination
- Altitude Express, Inc. v. Zarda, No. 17-1623.
- Bostock v. Clayton County, Georgia, No. 17-1618.
- R.G. & G.R. Harris Funeral Homes, Inc. v. Equal Employment Opportunity Commission, No. 18-107.
- California, Colorado, Connecticut, Delaware, District of Columbia, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, Nevada, New Hampshire, New Jersey, New Mexico, New York, Oregon, Rhode Island, Utah, Vermont, Virginia, Wisconsin (sexual orientation only, not gender identity), and Washington.
- Alabama, Alaska, Arizona, Arkansas, Florida, Georgia, Idaho, Indiana, Kansas, Kentucky, Louisiana,Michigan, Mississippi, Missouri, Montana, Nebraska, North Carolina, North Dakota, Ohio, Oklahoma, Pennsylvania, South Carolina, South Dakota, Tennessee, Texas, West Virginia, and Wyoming.