By: Joshua Friel
Yesterday, the United States Supreme Court issued a 6-3 ruling in which it held that Title VII of the Civil Rights Act of 1964 (“Title VII”) also covers homosexual and transgender employees. Title VII generally applies to all employers with 15 more than employees. The ruling can be summed up with the following quote from the decision:
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. (Bostock, p. 33).
The Supreme Court consolidated three separate appeals, two from gay men and one from a transgender woman, all three of whom alleged that their former employers fired them in violation of Title VII’s prohibition on discrimination on the basis of sex. In all three cases, the employers admitted that their discrimination was on the basis of the former employee’s sexuality or gender identity but disputed that the discrimination was on the basis of sex.
The Supreme Court found that it is, “impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.” The Supreme Court reasoned in the case of the two gay men, they were not fired simply for being attracted to men, they were fired because they were men who were attracted to men, and therefore, the discrimination was based on the sex of the employee. In the case of the transgender woman, the Court found that the discrimination was not simply because she identified as a woman, but because she was biologically a man who identified as a woman.
We are advising our corporate clients to take the following steps to ensure compliance with the law and avoid potentially costly lawsuits:
- Revise harassment and discrimination policies. Although the Supreme Court found that discrimination on sexual orientation and gender identity are already included within the definition of “sex” for Title VII, Employers should include specific provisions in their harassment and discrimination policies to guide management and employees on how the law applies and help create an atmosphere which does not tolerate such discrimination or harassment.
- Provide non-discrimination and harassment training. This ruling is a significant change in the way Title VII is interpreted. The Supreme Court took the case, in part, because the various Circuit Courts of Appeals which heard these cases came to different conclusions. Even among the Supreme Court, there were three justices which dissented from the majority. If Judges can get it “wrong” so too can employers trying to follow the law. The majority opinion is now law, so training on this decision is necessary to help Employers follow the law and prevent potentially costly violations.
- Consult with counsel on any employment decisions which may violate Title VII. In the past, employers have successfully defended discrimination against homosexuals and transgender people by arguing that discrimination on the basis of those characteristics was not covered by Title VII. As with other areas of employment law, we are likely to see the ripples of this decision in harassment and hostile work environment claims as well. Your counsel will be keeping up to date on these decisions and will be in the best place to advise you on complying with the law.
The Supreme Court’s decision was a surprise to many observers, especially since it was written by conservative, President Trump-appointed Justice Neil Gorsuch. The three employers who were defendants in the consolidated case felt confident enough in their decisions to fire their employees on the basis of sexual orientation that each employer admitted the basis for their firing decisions, and then defended their decisions all the way to the Supreme Court. The ambiguity in the law undoubtedly has discouraged many potential plaintiffs from pursuing a case, and lawyers from taking such cases.
However, now that the Supreme Court has addressed this issue, it is expected that more employees will bring claims under Title VII, and lawyers will be lining up to take those cases. It is more important than ever for employers to know how to comply with Title VII to avoid costly litigation.