On June 15th, 2020, the Supreme Court ruled in a 6-3 decision that discrimination based on gender identity and sexual orientation is illegal under Title VII of the 1964 Civil Rights Act. Title VII of the Civil Rights Act of 1964 outlawed discrimination in the workplace on the basis of race, color, religion, sex, and national origin.
The decision stems from three cases in front of the Court where an individual employee in each case alleged unlawful discrimination by their employer on the basis of sex under Title VII. Two cases related to sexual orientation – Gerald Bostock was fired after participating in a gay recreational softball league for “conduct ‘unbecoming’ a county employee”, and Donald Zarda was fired days after mentioning he was gay. The third case was about gender identity – Aimee Stevens presented as male when initially hired and was fired after informing her employer she planned to live and work as a woman.
Delivering the opinion of the Court, Justice Neil Gorsuch said the Court was tasked with determining the ordinary public meaning of the terms of the statute at the time it was enacted, and the primary characteristic and term at issue and in dispute between the parties in these cases was the protected characteristic “sex”. The Court looked at what sex meant under the statute and what Title VII says about it – that the prohibition in the statute is on taking certain actions “because of” sex. As the employers in these cases suggested that Title VII is only concerned with discharges involving discrimination, the Court analyzed what discrimination meant in 1964 and determined it is roughly the same as today – that discrimination against an individual “seems to mean treating that individual worse than others who are similarly situated.” The Court further reasoned that no matter how it is analyzed, there is no way an employer can discriminate against homosexual or transgender individuals without discriminating in part based on the individual’s sex. Therefore, based on the ordinary public meaning at the time of the law’s adoption, the Court stated, “[A] straightforward rule emerges: An employer violates Title VII when it intentionally fires an individual employee based in part on sex.”
The Court ruled in favor of the three employees, holding, “[i]n Title VII, Congress adopted broad language making it illegal for an employer to rely on an employee’s sex when deciding to fire that employee. We do not hesitate to recognize today a necessary consequence of that legislative choice: An employer who fires an individual merely for being gay or transgender defies the law.”
WHAT DOES IT MEAN FOR EMPLOYERS & EMPLOYEES?
Federal law now protects employees against discrimination based on their gender identity and sexual orientation. Practically speaking for employers covered by Title VII (companies with 15 or more employees), what it means is that if gender identity or sexual orientation is the reason or one of the reasons for failure or refusal to hire an individual, a reason to discharge an individual or a reason for discrimination against an individual, it is illegal. At the time of the ruling, less than half of states had statutes with protections against employment discrimination based on gender identity and sexual orientation. Minnesota employees already had these protections under the Minnesota Human Rights Act.
Employers should ensure that their company policies and practices are in line with the Court’s decision.