UPDATE – SFGH Client Alert – Supreme Court Rules Title VII Prohibits Employment Discrimination on the Basis of Sexual Orientation and Gender Identity
June 22, 2020, by Matthew B. Schiff and Kathryn C. Nadro, Sugar Felsenthal Grais & Helsinger LLP
In the companion cases Bostock v. Clayton County, Georgia, Altitude Express, Inc. v. Zarda, and R.G. & G.R. Harris Funeral Homes, Inc. v. Equal Employment Opportunity Commission, the Supreme Court ruled that Title VII of the Civil Rights Act of 1964, prohibits discrimination against gay and transgender workers. The three separate cases involved two individuals allegedly fired for being gay and one individual allegedly fired for coming out as transgender.
Justice Gorsuch, a Trump appointee writing for a 6-3 majority, stated: “It is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.” The Court explained when “an employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex,” “sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.” Prior to this ruling, 27 states offered no protection against employment discrimination against gay or transgender workers.
The Department of Justice had urged the Court to rule against gay and transgender workers, arguing that discrimination based on “sex” did not include sexual orientation or gender identity. Notably, the Equal Employment Opportunity Commission, which originally brought the R.G. & G.R. Harris Funeral Homes case on behalf of the transgender worker and had previously interpreted Title VII to prohibit discrimination based on sexual orientation, did not join the Justice Department’s brief to the Court.
While Bostock’s holding is limited to the employment context, its impact will almost certainly be felt in other areas of law. Both Title IX of the Civil Rights Act, which prohibits sex discrimination in education, and the Affordable Care Act, which prohibits discrimination in healthcare, use similar phrases as “based on sex.” In his dissent, Justice Alito warned that the ruling “is virtually certain to have far-reaching consequences” and noted over 100 federal statutes prohibit discrimination because of sex.
In many states, protections for gay and transgender workers existed prior to Bostock. For example, the Illinois Human Rights Act has provided workplace discrimination protections on the basis of sexual orientation and gender identity since 2006. The state law prohibits discrimination in the contexts of employment, housing, financial credit, public accommodations, and sexual harassment in education. However, for employers with workers in different states, a uniform federal standard now applies.
In light of Bostock, employers should review their equal employment opportunity, harassment, and discrimination policies to ensure compliance with this opinion and prohibit discrimination on the basis of sexual orientation and gender identity. Employers should also work to prevent discrimination on those bases and train their employees and management to comply with this new legal development.
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