The United States Supreme Court issued a landmark ruling on Monday, June 15, 2020, finding that federal discrimination law prohibits discrimination on the basis of sexual orientation or gender identity. Today’s ruling involved three separate cases and resolves longstanding questions about whether federal law prohibits discrimination against LGBTQ employees. The Court’s opinion came down 6-3 in favor of extending such protections. Justice Neil Gorsuch authored the Court’s majority opinion, joined by Chief Justice Roberts and Justices Ginsberg, Breyer, Sotomayor, and Kagan. Justice Alito authored a dissenting opinion which was joined by Justice Thomas. Justice Kavanaugh authored a separate dissent.
The issue of whether federal discrimination law protects LGBTQ employees has been hotly contested for decades. Title VII of the Civil Rights Act is the federal law which prohibits discrimination against workers on the basis of “sex” in addition to race, color, religion, and national origin. Proponents of extending these protections to include sexual orientation and gender identity have long argued that Title VII’s prohibition against discrimination “because of… sex” must be read to include protections for sexual orientation and gender identity, arguing those concepts are fundamentally contained within the legal definition of “sex.” Opponents focused on a plain and literal reading of the law, asserting Title VII makes no mention of sexual orientation or gender identity and if Congress wished to extend those protections it could easily have done so, yet it never had.
Courts have taken varied, often nuanced positions on this issue. Most federal courts to have considered the arguments found that Title VII did not include protections for sexual orientation or gender identity, yet courts had allowed lawsuits where plaintiffs alleged discrimination for failure to comply with sexual stereotypes. The Equal Employment Opportunity Commission, the agency tasked with enforcing federal discrimination law, has long taken the position that Title VII protects LGBTQ employees. The issue intensified recently as the U.S. Courts of Appeals for the Seventh and Second Circuits broke with their own prior precedents and held that sexual orientation was protected under Title VII. The Sixth Circuit Court of Appeals recently held that Title VII prohibits discrimination on the basis of gender identity. Other cases, including today’s appeal from the Eleventh Circuit, relied on past precedent in finding that Title VII did not include LGBTQ protections. Those conflicting decisions set up a circuit split which the Supreme Court has now resolved.
The Supreme Court reached its decision by holding that discrimination on the basis of sexual orientation or gender identity is discrimination on the basis of sex. In Justice Gorsuch’s words:
Today, we must decide whether an employer can fire someone simply for being homosexual or transgender. The answer is clear. 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.
Today’s decisions includes three cases. Two cases had been brought by gay men who alleged they were terminated because of their sexual orientation: Altitude Express v. Zarda, from the Second Circuit Court of Appeals, and Bostock v. Clayton County, Georgia, from the Eleventh Circuit. The Second Circuit found that Tile VII prohibited discrimination on the basis of sexual orientation, while the Eleventh Circuit came to the opposite conclusion. The Supreme Court heard oral arguments for Bostock and Zarda together. A third case was argued separately but also decided today. R.G. & G.R. Harris Funeral Homes Inc. v. EEOC considered whether Title VII protects against gender identity discrimination. That case was on appeal from the Sixth Circuit, which had ruled that gender identity was protected under Title VII. Ultimately, the Supreme Court decided all cases in favor of the employees, finding that Title VII prohibits discrimination on the basis of both sexual orientation and gender identity.
Some may be surprised at today’s rulings considering the Court’s current makeup includes five justices traditionally thought of as conservative. Recent decisions have shown that distinction is less clear, however, when the Court considers social issues. Chief Justice John Roberts broke with fellow Court conservatives in the Court’s 2015 Obergefell v. Hodges decision, finding that same-sex marriage was protected under the Constitution. Here, the Chief Justice again sided with parties asserting rights for sexual orientation and/or gender identity. Notably, this decision was the first major ruling on an LGBTQ rights issue since the retirement of Anthony Kennedy in 2018. Justice Kennedy had been the author of several decisions extending LGBTQ rights. It was particularly unexpected that Justice Gorsuch – nominated by President Trump in 2016 – authored the Court’s opinion. The Trump administration had argued that Title VII did not extend protections to LGBTQ employees.
It should be expected that both administrative charges, and, eventually, lawsuits, will increase as a result of these decisions. Particularly where state laws did not already prohibit discrimination against LGBTQ employees, this could lead to a significant increase in litigation. It is extremely important for employers to review their policies and training to ensure that they prohibit discrimination on the basis of sexual orientation and gender identity, and to make changes as necessary.
The St. Louis employment attorneys at McMahon Berger have been representing employers across the country in labor and employment matters for over sixty years, and are available to discuss these issues and others. As always, the foregoing is for informational purposes only and does not constitute legal advice regarding any particular situation as every situation must be evaluated on its own facts. The choice of a lawyer is an important decision and should not be based solely on advertisements.