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Thompson Hine LLP, a full-service business law firm with approximately 400 lawyers in 8 offices, was ranked number 1 in the category “Most innovative North American law firms: New working models” by The Financial Times and was 1 of 7 firms shortlisted for The American Lawyer’s inaugural Legal Services Innovation Award. The firm has been recognized by the National Law Journal as a Legal Technology Trailblazer and featured by Bloomberg for its innovative service delivery models, which drive accuracy and predictability. The firm’s commitment to innovation is embodied in Thompson Hine SmartPaTHTM – a smarter way to work – predictable, efficient and aligned with client goals. For more information, please visit ThompsonHine.com and ThompsonHine.com/SmartPaTH.

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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.”

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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.”

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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.

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

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. &amp; 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:

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. &amp; 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&nbsp;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:

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.

Sara Hamilton 404.407.3685 <a href="mailto:Sara.Hamilton@ThompsonHine.com">Sara.Hamilton@ThompsonHine.com</a>

Tim McDonald 404.407.3623 <a href="mailto:Tim.McDonald@ThompsonHine.com">Tim.McDonald@ThompsonHine.com</a>

M. Scott Young 513.352.6617 202.263.4134 <a href="mailto:Scott.Young@ThompsonHine.com">Scott.Young@ThompsonHine.com</a>

or any other member of our <a href="https://www.thompsonhine.com/services/labor-amp-employment" target="_blank" rel="noopener">Labor &amp; Employment</a> group.

This advisory bulletin may be reproduced, in whole or in part, with the prior permission of Thompson Hine LLP and acknowledgment of its source and copyright. This publication is intended to inform clients about legal matters of current interest. It is not intended as legal advice. Readers should not act upon the information contained in it without professional counsel.

This document may be considered attorney advertising in some jurisdictions.

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Supreme Court Rules Title VII Protects LGBTQ Individuals

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