Supreme Court Update: Title VII Prohibits Discrimination Based on Sexual Orientation or Gender Identity

 By Jennifer Ryback
Shareholder at McGuire, Craddock & Strother, P.C.
June 22, 2020

On June 15, 2020, the United States Supreme Court issued a 6-3 opinion in which the Court ruled that Title VII of the Civil Rights Act of 1964 (“Title VII”) prohibits discrimination based on sexual orientation or gender identity. You can read the full text of the Opinion here: https://www.supremecourt.gov/opinions/19pdf/17-1618_hfci.pdf.

A Look at the Court’s Opinion

Under Title VII, which applies to employers with 15 or more employees, it is unlawful for an employer to discriminate against an individual “because of such individual’s race, color, religion, sex, or national origin.” In the majority opinion, Justice Gorsuch begins with a statutory interpretation analysis from which the following “straightforward rule emerges”: “An employer violates Title VII when it intentionally fires an individual employee based in part on sex.” With this rule as the guide, Justice Gorsuch explained the majority’s analysis as follows:

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. Consider, for example, an employer with two employees, both of whom are attracted to men. The two individuals are, to the employer’s mind, materially identical in all respects, except that one is a man and the other a woman. If the employer fires the male employee for no reason other than the fact he is attracted to men, the employer discriminates against him for traits or actions it tolerates in his female colleague. Put differently, the employer intentionally singles out an employee to fire based in part on the employee’s sex, and the affected employee’s sex is a but-for cause of his discharge. Or take an employer who fires a transgender person who was identified as a male at birth but who now identifies as a female. If the employer retains an otherwise identical employee who was identified as female at birth, the employer intentionally penalizes a person identified as male at birth for traits or actions that it tolerates in an employee identified as female at birth. Again, the individual employee’s sex plays an unmistakable and impermissible role in the discharge decision.

The majority, therefore, determined that discrimination on the basis of sexual orientation or general identity is discrimination “based on sex” such that it is unlawful under Title VII. After discussing several of the arguments put forth by the employers involved in the underlying cases, Justice Gorsuch concluded the majority opinion as follows:

In 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.

Action Items for Employers

As a result of this decision, we recommend the following action items for employers covered by Title VII:

(1) ensure that employment-related determinations (including hiring and terminating employees) are not based on sexual orientation or gender identity;

(2) review your employee handbook and any policies to ensure that they prohibit discrimination based on sexual orientation and gender identify;

(3) update any workplace training accordingly; and

(4) consider additional training for HR professionals and others involved in supervising employees on these issues.

For more information or for assistance with the above action items, please contact Jennifer Ryback at jryback@mcslaw.com.

This correspondence should not be construed as legal advice or legal opinion on any specific facts or circumstances.  The contents are intended for general informational purposes only, and you are urged to consult a lawyer concerning your own situation and legal questions.  The information contained herein is current as of the date of this article.