June 16, 2020 – In a landmark decision, a divided U.S. Supreme Court (the “Court”) ruled 6-3 that Title VII of the Civil Rights Act of 1964 (“Title VII”) protects LGBTQ+ individuals from discrimination in the workplace.
Under Title VII, employers are prohibited from discriminating against employees and applicants for employment on the basis of race, color, religion, sex, and national origin. Until today, the Court had never decided whether Title VII’s prohibition against discrimination in employment on the basis of sex included sexual orientation and gender identity.
In Bostock v. Clayton County, 590 U.S. ____ (2020), which consolidated two other similar cases, the plaintiffs were long-time employees who were fired by their employers for identifying as LGBTQ+. The defendant employers did not dispute that they fired their employees for being LGBTQ+. Instead, the defendants argued that intentional discrimination against employees based on their sexual orientation or gender identity is not a basis for Title VII liability because (1) LGBTQ+ status is not referred to as sex discrimination in ordinary conversation; and (2) Congress did not specifically reference LGBTQ+ status in Title VII.
Justice Gorsuch, who was appointed by President Trump and delivered the majority’s opinion, disagreed with the defendant employers. The Court, relying on the plain and unambiguous meaning of Title VII’s language prohibiting employers from taking certain actions “because of sex,” found that “an employer who discriminates against homosexual or transgender employees necessarily and intentionally applies sex-based rules.” Thus, because Congress “adopted broad language making it illegal for an employer to rely on an employee’s sex when deciding to fire that employee,” the Court held that “[a]n employer who fires an individual merely for being gay or transgender” violates Title VII.
While this is an important decision for LGBTQ+ rights in the workplace and may signal the Court’s future direction on this critical human rights issue, it remains to be seen whether this decision will lead to greater protections in other areas. In the meantime, we recommend that employers immediately review and revise their workplace policies to ensure that their anti-discrimination provisions explicitly prohibit discrimination on the basis of sexual orientation and gender identity.
Ulmer’s Employment & Labor Group is available to provide you with strategic advice and counseling. Please reach out to our attorneys if you have any questions.
The information provided in this client alert speaks only to the information and guidance we have available as of the date of publication and is subject to change. We will continue to follow further issued guidance and regulations and endeavor to post those updates via our website. Please continue to follow these updates at ulmer.com. This legal update was created by Ulmer & Berne LLP, and is not intended as a substitute for professional legal advice. Receipt of this client alert, by itself, does not create an attorney client relationship. For any questions, or for further information, please contact Timothy Downing at tdowning@ulmer.com, William D. Edwards at wdedwards@ulmer.com, or Stephanie Harley at sharley@ulmer.com.