Wyatt Employment Law Report

SCOTUS Rules that Title VII Protects Employees from Discrimination on the Basis of Sexual Orientation and Gender Identity

by Marianna J. Michael

In a landmark decision, the Supreme Court of the United States held that the protections provided by Title VII of the Civil Rights Act of 1964 apply to gay, lesbian, and transgender employees. Title VII offers protection to workers from being discriminated against based on their race, color, religion, sex, or national origin.  Some lower courts interpreted “sex” to only apply to biological sex. Other courts held that the term “sex” included protections against discrimination for sexual orientation and gender identity. Today’s ruling makes it clear that under Federal law, employers may not discriminate against employees based on sexual orientation or gender identity.

The case before the Supreme Court, Bostock v. Clayton County, Georgia, was comprised of three different cases from the Second, Sixth, and Eleventh Circuits. In each case, a longtime employee was fired after their respective employers found out information relating to the employees’ sexual orientation or gender identity. The plaintiffs each brought suit for sex discrimination under Title VII. The circuit split, which necessitated the Supreme Court decision, occurred when the Second and Sixth Circuits permitted the plaintiffs to bring suit under Title VII for sex discrimination in their respective cases, while the Eleventh Circuit followed a different interpretation of the law and held that the plaintiff’s suit could be dismissed as a matter of law.

Justice Gorsuch, who penned the majority opinion, based his argument in precedent and statutory interpretation. “The statute’s message for our cases is equally simple and momentous: An individual’s homosexuality or transgender status is not relevant to employment decisions. That’s because it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”

The Court’s opinion then recognized three “lessons” from the Court’s precedent that apply to cases of discrimination against homosexual and transgender employees:

First, how an employer labels its discriminatory practice or the motivation behind the discriminatory practice is irrelevant.  For example, if an employer fails to hire a woman with children for being a mother, but hires a man with children of the same age and labels the practice as a “motherhood policy,” the employer is liable for sex discrimination. (Los Angeles Dept. of Water and Power v. Manhart, 435 U. S. 702 (1978)).

Second, the plaintiff’s sex does not need to be the sole or primary cause of the adverse employment factor, only a motivating factor. Pointing to previous cases, the Court states that employers will still be liable for sex discrimination even if they may be able to point to some other, nonprotected trait as a “more important factor.” (Oncale v. Sundowner Offshore Services, Inc., 523 U. S. 75 (1998)).

Third,  employers may not avoid liability by demonstrating that it treats males and females comparably as groups. Title VII applies to individuals. This is the theme driving the Court’s opinion. “[A]n employer who intentionally fires an individual homosexual or transgender employee in part because of that individual’s sex violates the law even if the employer is willing to subject all male and female homosexual or transgender employees to the same rule.” (Los Angeles Dept. of Water and Power v. Manhart, 435 U. S. 702 (1978)).

The defendants did not deny discriminating against the plaintiffs on the basis of being homosexual or transgender. Rather, they advanced: (1) a legal argument that there is no statutory protection for discriminating against an individual on the basis of their sexual orientation or gender identity and (2) a policy argument that there is no proof that that Congress intended to provide these protections on the basis of sexual orientation or gender identity. Summarizing the defendants’ legal position as “a suggestion that sex must be the sole or primary cause of an adverse employment action for Title VII liability to follow,” the Court rejected the Defendants’ first argument. In advancing their policy argument, Defendants failed to raise any issue with the language of the law and, essentially, agreed with the Court’s statutory interpretation. Their focus was on post-enactment measures. The Court, exploring statutory interpretation of other Title VII discrimination cases, rejected this argument as well.

The Court issued a 6-3 decision. Justice Alito, joined by Justice Thomas, issued a dissent. Justice Kavanaugh penned a separate dissent. Ultimately, the Court’s opinion expands rights already afforded by Title VII to certain employees to gay, lesbian, and transgender employees. Employers should ensure that their policies do not discriminate against individual employees based on their sexual orientation or gender identity. Contact one of Wyatt’s Labor & Employment attorneys if you need more guidance on this recent change.

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