Supreme Court Rules Title VII Protects LGBTQ Individuals

Labor & Employment @lert

Date: June 15, 2020

Key Notes:

  • Supreme Court rules that Title VII covers discrimination on the basis of sexual orientation or transgender status.
  • Employers should consider reviewing and updating policies and training.

The U.S. Supreme Court today ruled that Title VII of the Civil Rights Act of 1964’s prohibition of discrimination “because of … sex” includes bias on the basis of sexual orientation or transgender status. Specifically, the court indicated that Title VII covers employees who are “homosexual” or “transgender.” In a 6-3 opinion written by Justice Gorsuch, the court ruled, “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.”

Thus, an employer violates Title VII when it “intentionally fires an individual employee based in part on sex. It makes no difference if other factors besides the plaintiff’s sex contributed to the decision or that the employer treated women as a group the same when compared to men as a group.”

Although the three cases resolved today, dubbed the “Title VII Trilogy,” each involved termination of employment, the ruling should be considered equally applicable to all employment decisions covered by Title VII, such as hiring, pay and promotion. Employers and academics should also be aware of the reasoning underlying the decision, which may leave open Title VII’s application to “sex” for future changes. So long as sex plays a necessary and undisguisable role in an employment decision, Title VII forbids it.

Practical Meaning for Employers

As a result of today’s ruling, an employer may wish to consider, as needed:

  • Reviewing written or other policies relating to non-discrimination and equal employment.
  • Amending its equal employment opportunity policy to incorporate a statement that it does not discriminate or retaliate against applicants or employees based on sex, sexual orientation, sexuality, transgender status, or gender identity or expression, and prohibits such discrimination and retaliation; procedures for reporting violations; a statement that it will investigate complaints and take necessary corrective action; and a signed acknowledgement of the new policy.
  • Implementing training for managers or others who regularly interview applicants, supervise and discipline employees, or conduct internal investigations, including diversity and inclusion training.
  • Reminding human resources staff to maintain records of sex-related medical conditions as confidential medical records under the ADA.
Background

In each case, an employee claimed their employment was terminated because of sex in violation of Title VII. Bostock v. Clayton County, consolidated with Altitude Express v. Zarda, asked whether Title VII’s prohibition of sex discrimination encompasses sexual orientation, while R.G. & G.R. Harris Funeral Homes, Inc. v. EEOC asked whether Title VII prohibits discrimination against transgender individuals based on their transgender status or as sex stereotyping.

All were argued on October 8, 2019, and more than 150 amici curiae briefs were filed. The facts and procedural history of each was slightly different:

  • In Bostock, Gerald Bostock, a gay man with a 10-year record of exemplary employment, alleged he was terminated for participating in a gay recreational softball league. He filed a pro se lawsuit alleging discrimination based on sexual orientation, later adding a claim for gender stereotyping. The district court dismissed his discrimination claim for failure to state a claim and his gender stereotyping claim for failure to exhaust administrative remedies. The Eleventh Circuit, citing past precedent, upheld the dismissal and declined to hear it en banc.
  • In R.G. & G.R. Harris Funeral Homes, the EEOC sued a closely held funeral home that had terminated an employee who transitioned from male to female. The district court held that direct evidence supported a discrimination claim but granted summary judgment to the employer under the Religious Freedom Restoration Act. It also held that the employee could not alternatively pursue claims based on transgender and transitioning status. The Sixth Circuit reversed, holding that transgender status constitutes sex discrimination in violation of Title VII.
  • In Altitude Express, a skydiving instructor alleged he was terminated because of his sexual orientation and for not confirming to gender stereotypes. The district court initially ruled for the employer, holding that Title VII’s prohibition of sex discrimination does not include sexual orientation. The Second Circuit initially affirmed the ruling, citing past precedent. However, after the EEOC issued an opinion in a separate case including sexual orientation as sex discrimination, the Second Circuit reheard the case en banc, expressly overruling its past precedent.
Analysis

Today’s ruling resolves a long-standing and complicated debate over the meaning of “sex” that has been brewing for decades.

When passed as part of the Civil Rights Act of 1964, Title VII’s prohibition of sex discrimination was never discussed in legislative hearings. In fact, sex as a protected class was famously added at the last minute by a congressman trying to sink the bill.

At first, courts uniformly limited the term to biological gender. See, e.g., De Santis v. Pac. Tel. & Tel. Co., 608 F.2d 327 (9th Cir. 1979) (holding that sex discrimination does not encompass sexual preference). However, the jurisprudence began varying widely after 1989 for two reasons. First, in 1989, the U.S. Supreme Court decided the case of Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), which established that sex stereotyping is a form of sex discrimination. In doing so, aspects of the concurring opinions appeared to distinguish between biological sex and the social construct of gender for the first time. Then, in 1991, the Civil Rights Act was amended to add the “motivating factor” standard, under which an employment practice is unlawful if sex is a motivating factor for it, even if other factors also motivate it. See 42 U.S.C. 2000e-2(m).

Since then, parties began challenging the limited meaning of “sex” using numerous theories, including sexual orientation and gender identity as:

  • Unlawful sex stereotyping
  • A subtype of sex discrimination, i.e., that a gay male employee would not have suffered an adverse action if he were a woman attracted to a man
  • Unlawful associational discrimination
  • An immutable characteristic covered in the protected class
  • Causing a disparate impact

The cases became more complicated and seemingly difficult to resolve as courts were confronted with issues such as gender identity, dress codes and same-sex harassment.

Meanwhile, in 2015, the EEOC issued non-binding guidance stating that the agency would interpret Title VII’s prohibition of sex discrimination as forbidding employment discrimination based on gender identity or sexual orientation. Approximately 26 states plus the District of Columbia have also passed laws prohibiting discrimination based on sexual orientation and gender identity or expression. Today’s Supreme Court ruling applies this prohibition to all 50 states under Title VII.

FOR MORE INFORMATION

For more information, please contact:

Sara Hamilton
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Sara.Hamilton@ThompsonHine.com

Tim McDonald
404.407.3623
Tim.McDonald@ThompsonHine.com

M. Scott Young
513.352.6617
202.263.4134
Scott.Young@ThompsonHine.com

or any other member of our Labor & Employment group.

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