The Answer is Clear—Title VII Will Protect Gay and Transgender Workers

In a long awaited landmark ruling by Justice M. Gorsuch, the Supreme Court ruled that Title VII protects gay and transgender workers. The Opinion provides:

Today, we must decide whether an employer can fire someone simply for being homosexual or transgender. 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. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.

Justice Gorsuch was joined by Chief Justice Roberts and by Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor, and Elena Kagan.

The High Court consolidated three pending cases for decision: Altitude Express, Inc. v. Zarda, Bostock v. Clayton County, and R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission. We had previously reported on R.G. & G.R. Harris Funeral Homes Inc., a case where the Sixth Circuit had found that the employer had violated Title VII by terminating Aimee Stephens, a transgender female, for wearing a dress at work. The Second Circuit in Zarda had also found that the plaintiff there had a viable claim under Title VII, for discrimination based on sexual orientation. In contrast, the Eleventh Circuit had affirmed the dismissal of the plaintiff’s complaint in Bostock – thus setting up the conflict that the Supreme Court just resolve.

On the one hand, it is surprising how long it took the Court to visit this question. It has been almost five years (June 26, 2015) since the Court held that gay marriage was legal in Obergefell v. Hodges. However, this delay is likely due to dramatic changes to the political landscape since Obergefell, particularly with respect to the federal government’s position regarding LGBTQ rights. On top of that, the current administration added a conservative justice. With those two factors working against the outcome of this ruling, the question then becomes what did the Court rely upon?

The answer—statutory interpretation. Title VII forbids discrimination on the basis of “sex.” The Court had two options. The first was interpreting the term under the plain meaning doctrine, so that “sex” would refer strictly to biological constrictions (i.e., male or female). The current administration took this position in their briefing and at oral argument.

Alternatively, and the position ultimately adopted by the Court, is that “sex” should not be limited to a biological definition, and should include gender identity and sexual orientation.

As the Court explained, “discrimination on the basis of homosexuality or transgender status requires an employer to intentionally treat individual employees differently because of their sex[.]” Its analysis was very simple—if you would take action against an employee of one sex, because they behave or display attributes which you would tolerate in employees of another sex, you are discriminating. As an example, the Court posited—what if a company had a policy of firing all homosexuals? A male employee would have no problem bringing his wife to a company event. He would not be fired, assuming that he is a biological male. On the flip side, that employer would fire a female employee who brought her wife to that event. It is simple-that is different treatment, based on sex.

While many states and cities already prohibit discrimination based on sexual orientation and gender identity, still more than half of states in the United States permitted employers to terminate workers for being gay, bisexual or transgender. So, this ruling is a very big deal and is a huge victory for LGBTQ workers.

Now everyone, in every state, must be treated equally.

What should employers do?

To state the obvious, if you are in a state where this was not unlawful, you must now review and amend your policies and make sure that this type of discrimination is covered.

However and even if you are sitting in a state where it has long been unlawful to discriminate against LGBTQ employees, now is a great time to remind your HR Department and staff about these protections. Many companies are bringing employees back to work after months of being out and socially distant. A ruling like this offers a great excuse to remind everyone that your company will not tolerate discrimination, against any employee, including those who are gay or transgender. Tolerance, especially now, should be your motto.

The link to the 172-page opinion can be found here.