Alerts and Updates

Title VII Protects LGBTQ Employees, U.S. Supreme Court Rules

June 17, 2020

“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.”

On June 15, 2020, the Supreme Court of the United States issued a landmark decision holding that an employer who fires an individual merely for being gay or transgender violates Title VII of the Civil Rights Act of 1964.

Title VII makes it “unlawful… for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual… because of such individual’s… sex.” 42 U.S.C. §2000e–2(a)(1). Courts across the country have long been divided on whether “sex” included sexual orientation and gender identity.

In a 6-3 opinion written by Justice Neil Gorsuch, the Court consolidated review of three cases in which employees alleged they were terminated for being gay or transgender. The Court relied on the ordinary meaning of “sex” and opined that:

[H]omosexuality and transgender status are inextricably bound up with sex. Not because homosexuality or transgender status are related to sex in some vague sense or because discrimination on these bases has some disparate impact on one sex or another, but because to discriminate on these grounds requires an employer to intentionally treat individual employees differently because of their sex.

In other words, “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.”

For example, the Court discussed a hypothetical situation in which an employer has two employees, both of whom are attracted to men. The employees are materially identical, except that one is a man and the other is a woman. “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 also discussed a similar hypothetical situation with transgender employees. If an employer terminates a transgender female employee who identified as male at birth, but retains an otherwise identical female employee who identified as female at birth, the employer is penalizing the employee who identified as male at birth for the same traits or actions it tolerates in the employee who identified as female at birth. In both of these scenarios, it is the individual’s assigned gender that is the determinative or “but for” cause of their discharge.

The dissent argued that when Title VII was drafted in 1964, the legislature did not intend for the civil rights law to apply to discrimination against homosexual and transgender persons. The lack of explicit reference to these characteristics and repeated efforts over the years to amend Title VII to include them supports this notion, the dissent contended.

The Court, however, responded that legislative history has no bearing where the statutory language—here, discrimination because of sex —is broad, clear and unambiguous.

The Court’s ruling on Title VII brings federal law in line with those states and localities that ban discrimination on the basis of sexual orientation and/or gender identity. Currently, slightly less than half of all states and approximately 400 jurisdictions prohibit discrimination based on sexual orientation and/or gender identity. This decision will be most impactful in those jurisdictions without such protections already in place.

What Should Employers Do?

Employers should review employee handbooks and policies to ensure gender identity and sexual orientation are covered as protected characteristics. Employers should also review their practices to ensure all policies are being equally and fairly implemented and enforced. Employers may also want to consider providing renewed harassment and discrimination trainings to employees.

For More Information

If you have any questions about this Alert, please contact Eve I. Klein, any of the attorneys in our Employment, Labor, Benefits and Immigration Practice Group or the attorney in the firm with whom you are regularly in contact.

Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm's full disclaimer.