Today, the U.S. Supreme Court ruled that employers who discriminate against gay and transgender workers violate Title VII. The Court’s 6-3 decision resolves a longstanding circuit split on this issue and extends Title VII protections to LGBTQ+ employees across the country. Justice Gorsuch drafted the majority opinion for the Court, and was joined by Chief Justice Roberts and Justices Ginsberg, Breyer, Sotomayor, and Kagan. For employers, we examine the ruling below and offer key takeaways.
In its long-awaited and hotly-debated decision, the Court determined that when an employer fires or otherwise discriminates against an employee simply for being homosexual or transgender, “sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”
Title VII does not specifically address gender identity or sexual orientation. Rather, the text of the statute states simply that employment discrimination is prohibited on the basis of “race, color, religion, sex, or national origin.” This discrete list of protected classes led many to predict that the Court would defer to Congress to legislate an expansion of rights to LGBTQ+ individuals. However, the Court’s decision today makes clear that sexual orientation and gender identity are inextricably linked to the question of sex. As such, an employer cannot discriminate against an employee based on their sexual orientation or gender identity without discriminating against that employee based on their sex.
The Court drew a parallel between a 1972 Supreme Court decision, where an employer allegedly refused to hire a woman based on her status as a mother with young children, but did hire men with similarly aged children. There, the employer argued that it could not have violated Title VII because the decision not to hire the woman rested on her status as a parent with children, not on her status as a woman. The Court rejected this argument because although motherhood was not a protected class under Title VII, and well may have been the determining factor in the company’s decision, it was indisputable that sex also had played a role in the hiring decision. In other words, had the applicant been a man, she would have been hired. So too, the Court explained does sex play a role in an employer’s decision to discriminate against a homosexual or transgender employee.
The Court’s decision aligns with the trend among states and former administrations. Twenty-one states (and the District of Columbia) already have state laws in place that prohibit discrimination on the basis of sexual orientation and gender identity. Additionally, pursuant to Executive Order 13672, federal contractors have a pre-existing obligation to treat sexual orientation and gender identity as protected classes. Moreover, the Equal Employment Opportunity Commission interprets and enforces Title VII’s prohibition of sex discrimination as forbidding any employment discrimination based on gender identity or sexual orientation. That said, this is the first time that the high court has answered the question of Title VII’s application to gay and transgender workers.
While we cannot know the full impact of today’s decision, there are some important takeaways that employers need to consider moving forward.
- Employers should immediately examine their employee handbooks and policies to ensure that sexual orientation and gender identity are enumerated protected classes.
- Employers should also consider amending their training programs and immediately train managers and supervisors regarding this important development.
- It’s also important to keep in mind that this decision has the potential to impact a number of additional laws that prohibit discrimination on the basis of gender and may well influence how these laws are interpreted in the future.
