When Decisions Matter.

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U.S. Supreme Court: Title VII Protects Homosexual and Transgender Employees

On June 15, 2020, the United States Supreme Court (“Supreme Court” or “Court”) ruled on a number of cases related to the question of whether an employer can take adverse employment action against an employee for being homosexual or transgender. In its decision, the Supreme Court held that an employer that fires or otherwise takes an adverse employment action against an employee for being homosexual or transgender violates 42 U.S.C. §2000e – 2(a)(1), also known as Title VII of the Civil Rights Act of 1964 (“Title VII”). Title VII prohibits employers from discriminating against employees on the basis of race, color, religion, sex, or national origin. The Supreme Court found that when an employer fires an employee for being homosexual or transgender, the employer is firing that person based upon traits or actions it would not have questioned in members of a different sex, and therefore, is committing sex discrimination.

The decision comes after the consolidation of three cases from three different Circuit Courts of Appeal: Bostock v. Clayton County, Georgia of the Eleventh Circuit, Altitude Express, Inc., et al., v. Zarda, et al., of the Second Circuit, and R. G. & G. R. Harris Funeral Homes, Inc. v. Equal Employment Opportunity Commission et al., from the Sixth Circuit. In Bostock, the employer fired the employee for conduct “unbecoming” a County employee after joining a gay recreational softball league, and in Altitude Express, the employer fired the employee days after stating that he was gay. In R. G. & G. R. Harris Funeral Homes, the employer fired the employee for informing her employer that she was choosing to live and work as a woman after presenting as a male when hired. Each employee sued, alleging sex discrimination under Title VII. The Eleventh Circuit found that Title VII did not apply and dismissed the claim as a matter of law, however, the Second and Sixth Circuits found that Title VII did apply to the claims, and permitted them to proceed to trial. Appeals to the Supreme Court were filed in all three cases, and the Supreme Court accepted them for review.

In the Supreme Court opinion, which is authored by Justice Gorsuch and joined by Justices Roberts, Ginsburg, Breyer, Sotomayor and Kagan, the Court conducted an extensive analysis of the word “sex” and its context in the plain language and legislative history of Title VII. Ultimately, the Court concludes that “[a]n 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.” The Court found that to discriminate against an employee on the grounds of being homosexual or transgender requires an employer to intentionally treat individual employees differently because of their sex; e.g., if two employees are attracted to men, but one is a man and one is a woman, and the employer fires the man for being attracted to men, the only difference between the two employees is the employees’ sex. Further, the Court discusses that Title VII discrimination is not a “but-for” analysis, but rather, that even if sex is only one of many factors why the employee is fired, there is still a violation of Title VII.

The Court addresses the numerous arguments set forth by the employers as well. The Court found the employers’ arguments based upon the statutory text and the legislative history of the Civil Rights Act of 1964 to be a “repackage[ing] of errors we’ve already seen and this Court’s precedents have already rejected,” and would “allow us to ignore the law as it is,” respectively. Justice Alito filed a dissenting opinion, in which Justice Thomas joined, and Justice Kavanaugh also filed a dissenting opinion.

In summary, employers must be aware that they may not take adverse employment action against an employee on the basis of the employee’s sexual orientation or gender identity, just as the employer may not discriminate on the basis of the employee’s race, color, religion, sex, or national origin. We anticipate that the Equal Employment Opportunity Commission (EEOC) will be updating its guidance on Title VII in the near future in light of the Court’s decision, and we will alert employers as this guidance is published.

If you have a question about the impact of the Supreme Court’s decision on your business, please do not hesitate to contact an Employment Attorney in Stock and Leader’s Business Group.

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