June.15.2020
On June 15, and just in time for LGBTQ+ Pride month, the U.S. Supreme Court issued a landmark decision holding that Title VII of the Civil Rights Act of 1964 protects employees from discrimination on the basis of sexual orientation and gender identity. The decision is among the most Court’s most significant federal non-discrimination rulings in the last several decades, and immediately resolves a circuit split regarding the scope of Title VII’s prohibition on sex-based discrimination. The decision covers three consolidated opinions – Bostock v. Clayton Cnty. Bd. of Comm’rs, Altitude Express, Inc. v. Zarda, R.G. & G.R. Harris Funeral Homes v. Equal Employment Opportunity Commission.
Justice Neil Gorsuch, one of two President Trump appointees on the Supreme Court, authored the 6-3 majority decision. Following the Supreme Court decision, discrimination on the basis of sexual orientation or gender identity is necessarily discrimination because of an employee’s sex under Title VII:
“At bottom, these cases involve no more than the straightforward application of legal terms with plain and settled meanings. For an employer to discriminate against employees for being homosexual or transgender, the employer must intentionally discriminate against individual men and women in part because of sex. That has always been prohibited by Title VII’s plain terms—and that ‘should be the end of the analysis.’” [internal citation omitted]
In essence, because sexual orientation and gender identity-based discrimination always depend on the employee’s sex, all such discrimination is prohibited under existing Title VII provisions. For example, Title VII prohibits an employer from terminating a female employee for marrying a woman because the employer would not have taken the same adverse action if the employee had been male. By a similar token, discrimination against a transgender employee implicitly turns on the individual’s sex assigned at birth.
The U.S. Department of Justice (“DOJ”) had filed amicus briefs arguing that Title VII did not prohibit discrimination against LGBTQ+ employees, while the Equal Employment Opportunity Commission (“EEOC”), an independent government commission, has consistently taken the opposite position. Additional agency guidance is likely to follow the decision in the trio of cases given the inconsistencies in approach across the federal government. The decision also comes just days after guidance rescinding non-discrimination protections for LGBTQ+ individuals under the Affordable Care Act.
Laws governing LGBTQ+ non-discrimination have evolved swiftly over the past decade. The Supreme Court’s 2015’s decision in Obergefell v. Hodges extended marriage rights to same-sex couples, while leaving the status of workplace LGBTQ+ protections uncertain. Since 2017, two federal appellate courts—the Second and Seventh Circuits—had held that Title VII protects employees against sexual orientation-based discrimination. Two other federal appellate courts—the Sixth and Eleventh Circuits— held that Title VII likewise prohibits discrimination on the basis of sexual orientation. Other appellate courts had reached contrary decision or had yet to weigh in conclusively on the matter.
Although federal lawmaking efforts to expand Title VII protections have stalled in recent years, dozens of state and local governments have introduced and passed LGBTQ+ non-discrimination laws. Approximately 25 state laws now prohibit discrimination on the basis of sexual orientation and/or gender identity, many enacted within the last decade. The Supreme Court decision immediately extends similar protections under federal law to employees in the remaining 25 states. The decision also impacts how various federal agencies must handle complaints of sexual orientation and gender identity discrimination.
In many instances, state laws may provide greater protections for LGBTQ+ individuals than exist under Title VII. Among other provisions, state laws may have lengthier statutes of limitation, reduce the burden of proof, and allow recovery of punitive and other damages. The Supreme Court decision is nevertheless historic in guaranteeing rights to LGBTQ+ employees at the national—and under the familiar Title VII framework.
Some additional questions remain, with future claims likely to address how the courts will handle increasingly sophisticated dimensions of sexual orientation, gender identity, and gender expression. The Supreme Court’s decision, for example, does not explicitly describe how the anti-discrimination prohibitions apply with respect to non-binary gender identities and gender non-conforming gender expressions. For now, however, employers should consult with counsel to ensure that their equal employment opportunity policies, employee handbooks, and employee training materials are up to date and consistent with Title VII’s protections for LGBTQ+ individuals.