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The Supreme Court Rules That Title VII Prohibits Discrimination Based On Sexual Orientation and Gender Identity

In a historic 6-3 decision, the United State Supreme Court ruled in Bostock v. Clayton County Georgia that Title VII prohibits discrimination based on sexual orientation and gender identity.

As we previously reported, on October 8, 2019, the United States Supreme Court consolidated and heard oral arguments in three significant sex discrimination cases regarding Title VII’s coverage of sexual orientation and transgender status discrimination.  In each of the three case, the employer fired a long-time employee shortly after the employee revealed he or she was homosexual or transgender. In Bostock v. Clayton Cty (11th Circuit Court of Appeals) an employee was fired for conduct “unbecoming” after joining a gay recreational softball league, in Altitude Express v. Zarda (2nd Circuit Court of Appeals) an employee was fired shortly after revealing that he was gay, and in R.G. & G.R. Harris Funeral Homes, Inc. v. EEOC (6th Circuit Court of Appeals), a transgendered employee who presented as male at hire was fired after announcing to her employer that she planned to transition to female.

The question before the Court was whether Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination “because of . . . sex” encompass discrimination based on an individual’s sexual orientation and gender identity. The Court held it does, finding “an employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in member of a different sex. Sex play a necessary and undisguisable role in the decision, exactly what Title VII forbids.”

In reaching this conclusion, the Court reasoned that it is impossible to discriminate against an individual for being homosexual or transgender without discriminating against that individual based on sex because such discrimination requires an employer to intentionally treat individual employees differently because of their sex.

The majority decision written by Justice Neil Gorsuch took a textualist approach to interpreting Title VII. While the Court acknowledged that in 1964, when Title VII was enacted, many would have not expected it to apply to discrimination because of sexual orientation or transgender status, but the Court gave no weight to legislative history since the language of the statute regarding discrimination was unambiguous.

Moving forward, employers should review their employee handbook, applications, and training materials to ensure its policies and practices comply with the high court’s ruling. Further, employers may want to consider providing updated training to their employees, managers, and supervisors.

If you have any questions about this decision or would like our help to update your organization’s policies, practices, and training materials, please contact a member of our Labor and Employment Section.

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