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Supreme Court Holds That Employers Cannot Discriminate Against LGBTQ Workers Under Title VII

 

The majority opinion pointed to the plain language of Title VII, which makes it “unlawful ... for an employer to fail or refuse to hire or to discharge an individual, or otherwise to discriminate against an individual ... because of such individual’s race, color, religion, sex, or national origin.”

Joe Keene

 
 

In a monumental decision issued June 15, 2020, the U.S. Supreme Court held that Title VII of the Civil Rights Act of 1964 prohibits workplace discrimination on the basis of an employee’s sexual orientation or gender identity.

Title VII has long prohibited workplace discrimination on the basis of sex. In a 6-3 decision authored by Justice Neil Gorsuch (with Chief Justice Roberts and Justices Ginsburg, Breyer, Sotomayor and Kagan joining), Justice Gorsuch focused on the plain language of Title VII and found that Title VII’s prohibition on discrimination against individuals “because of sex” necessarily includes gay and transgender individuals.

The majority opinion pointed to the plain language of Title VII, which makes it “unlawful ... for an employer to fail or refuse to hire or to discharge an individual, or otherwise to discriminate against an individual ... because of such individual’s race, color, religion, sex, or national origin.”

The Court’s decision turned on the phrase “because of sex” and whether this phrase covered gay and transgender workers. Gorsuch answered this question in the affirmative by explaining 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.”

Notably, Justice Gorsuch made it clear that the Court was deciding only Title VII sex discrimination issues and that any issues regarding Title VII sex discrimination and its conflict with religious freedom issues, such as the Religious Freedom Restoration Act, are “questions for future cases.” This will be an area to watch going forward.

Justice Alito authored a scathing dissent, joined by Justice Thomas; Justice Kavanaugh also wrote a separate dissent. Justice Alito’s 100-plus-page dissent primarily quarreled with the majority’s decision in taking a position that was beyond the original intended scope of Title VII.

The case arose from a consolidation of three cases all argued last fall. In one case, the Second Circuit Court of Appeals held that Title VII did indeed prohibit discrimination on the basis of sexual orientation, while the Eleventh Circuit reached a contrary conclusion. The third lawsuit involved a transgender employee who alleged she was fired because of her sexual identity, and the Sixth Circuit Court of Appeals held that Title VII protects transgender employees.

(The Supreme Court case is styled as Bostock v. Clayton County, No. 17-1618, ---S.Ct.----, 2020 WL 3146686.)

What Employers Need to Know

For employers, the Bostock decision now makes it crystal clear that discrimination against an employee for that employee’s sexual orientation or gender identity is a violation of Title VII’s prohibition on sexual discrimination.

Unlike many states with existing laws protecting against sexual orientation and gender identity discrimination in employment, Arizona lacks these specific protections under its current civil rights laws. See A.R.S. § 41-1463(B). Therefore, we recommend employers work with their attorneys and local counsel to review employee handbooks and policies to ensure they reflect the new change in the law.