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LGBTQ+ workers are protected by the Civil Rights Act: a landmark decision from the US Supreme Court

Written by
FordHarrison LLP, nationwide U.S. law firm with a singular focus on HR law.
On 15 June 2020, the US Supreme Court held that LGBTQ+ workers are protected at a national level from workplace discrimination by Title VII of the Civil Rights Act. 

June is Pride Month. This year’s Pride Month has extra meaning for the LGBTQ+ community, allies and advocates. On 15 June 2020, Justice Gorsuch, writing for the 6-3 majority of the United States Supreme Court, handed down the long-awaited decision in three consolidated cases: Bostock v. Clayton County, Altitude Express Inc. v. Zarda, and R.G. Harris Funeral Homes Inc. v. EEOC. (Justices Alito, Thomas and Kavanaugh dissented.) Now, based on this monumental decision, sexual orientation and gender identity discrimination are prohibited for the first time on a national level by Title VII of the Civil Rights Act of 1964. Before Monday, gay, lesbian and transgender employees in 27 states had no state or federal protection from workplace discrimination. This decision comes just days after the release of a Health and Human Services Final Rule, which, among other things, rolled back Affordable Care Act regulations that prohibited health care providers and insurers from discriminating against transgender individuals.

The dispute in these cases revolved around the meaning of ‘sex’ in Title VII: whether discrimination because of ‘sex’ covers discrimination based on sexual orientation and gender identity, not just based on being a man or a woman. Title VII prohibits an employer from:

‘fail[ing] or refus[ing] to hire or to discharge any individual, or otherwise discriminate against any individual…because of such individual’s…sex….’

Advocates have argued that both sexual orientation and transgender status are encompassed in the meaning of the word ‘sex.’ Opponents have argued that in 1964, the drafters of Title VII never intended ‘sex’ to have any meaning beyond what biology dictates. This left a split in the Circuit Courts across the country. In Bostock v. Clayton County, the Eleventh Circuit upheld dismissal of Bostock’s lawsuit, holding Title VII did not prevent sexual orientation discrimination. In Altitude Express, Inc. v. Zarda, the Second Circuit came to the opposite conclusion, allowing a gay man to pursue his Title VII workplace discrimination claims based on allegations of sexual orientation discrimination. In R.G. & G.R. Harris Funeral Homes v. EEOC, brought on behalf of Aimee Stephens, a transgender woman, the Sixth Circuit held that Title VII prohibits gender identity discrimination against transgender employees. Certiorari (judicial review) was granted in these cases, and they were consolidated to put to rest the disagreement. Oral argument was held on 8 October 2019.

Justice Gorsuch, in issuing the opinion of the majority, held narrowly to the meaning of ‘sex’. The majority held that an employer simply cannot consider a person’s sexual orientation or gender identity without, at least in part, intentionally considering the person’s sex.

‘[I]f changing the employee’s sex would have yielded a different choice by the employer – a statutory violation [for discrimination because of sex] has occurred.’

For example, if an employer, who has two otherwise materially identical employees, terminates a male for being attracted to men, but does not terminate a female for being attracted to men, that decision is because of the employee’s sex. Likewise, if an employer terminates a transgender female employee because her sex was assigned male at birth, but does not terminate a female employee who was assigned female at birth, the employer intentionally penalizes a person identified as male at birth for traits or actions that it tolerates in an employee who was identified as female at birth. That an employer may discriminate against all homosexual or all transgender employees, whether male or female, is not a defense, since, as explained by the Court, Title VII prohibits discrimination against ‘individuals,’ not groups as a whole.

The Court found support in three cases. In the first, Phillips v. Martin Marietta Corp., decided in 1971, the Court held that Title VII was violated when an employer refused to hire women with young children, but hired men with children the same age. The employer argued that its policies actually favoured hiring women, but the Court found the statistics irrelevant to how it treated individual members of the class. Second, the Court looked to the 1978 case Los Angeles Dept. of Water & Power v. Manhart. In Manhart, the employer required women to make larger pension contributions than men, reasoning that women live longer and, therefore, should make larger contributions so there would be class-wide equality between men and women. The Court rejected the employer’s reasoning, finding the policy had a disparate impact on one sex over another. Finally, in Oncale v. Sundowner Offshore Services., Inc., decided in 1998, the Court recognized that male-on-male sexual harassment violates Title VII because, had the plaintiff not been male, the harassing conduct would not have occurred, thus constituting discrimination ‘because of sex.’ The Court found this to be true despite same-sex harassment never having been contemplated by legislators in 1964. Together, explained Justice Gorsuch, these cases demonstrate that where sex is inextricably intertwined with the different treatment, such as with sexual orientation and gender identity, that different treatment is prohibited by Title VII. In Phillips, it was not a violation to discriminate based on parenthood, but it is discriminatory to treat male and female parents differently. In Manhart, it was not discriminatory to have a life expectancy adjustment, but it is when women pay more than men. All three cases demonstrate that sex need not be the only cause of the adverse action, so long as it was one factor.

The dissenting opinions authored by Justices Alito and Kavanaugh centre on legislative intent. Both reason that legislative intent in 1964 was not to prohibit sexual orientation or gender identity discrimination. Further, they point out that Congress has failed to pass any amendment since 1964 to include sexual orientation and gender identity specifically as protected traits under Title VII, despite proposals to do so. They criticise the majority for allegedly engaging in lawmaking, not law interpretation. But Justice Gorsuch dismisses these concerns as unnecessary, noting the term ‘sex’ is broad, and has been applied in many ways not contemplated by legislators in 1964. In 1964, the drafters did not contemplate sexual harassment as a form of sex discrimination, nor did they consider the possibility of same-sex harassment. Rather, the broad language shows legislators’ adherence to the well-settled rule that law should be flexible to bend with the times. Given how ‘sex’ has been broadly applied in the past, unless specific sexual orientation and transgender status is specifically excluded in the statute, there is no basis to exclude. Simply put, in the opinion of Justice Gorsuch and the five Justices who joined him, sexual orientation and gender identity status are so entwined with a person’s sex that Title VII prohibits discrimination based on both.

Employers’ bottom line

It is now official: Title VII prohibits sexual orientation and gender identity discrimination. Although many state laws already had such protections, for many employees, this is the first time that they will enjoy similar protections. All employers should immediately review their anti-discrimination and anti-harassment policies and complaint procedures to ensure that sexual orientation, gender identity and transgender status are included. Now, during Pride Month, with this decision freshly released from the Supreme Court and a keen awareness of inequality throughout the country, employers should also take this opportunity to continue to educate employees to acknowledge differences in a mindful manner and treat each other with dignity and respect in the workplace.

Johanna G. Zelman
FordHarrison LLP