On June 15, 2020, the U.S. Supreme Court issued a landmark decision holding that Title VII of the Civil Rights Act of 1964 protects LGBTQ workers from discrimination in the workplace. In a 6-3 decision, written by Justice Neil Gorsuch, the Supreme Court ruled that discrimination based on an individual’s homosexuality or transgender status clearly constitutes discrimination “because of sex.”
The majority dismissed the employers’ argument that few in 1964 would have expected Title VII to apply to homosexual or transgender discrimination and that “sex,” in its ordinary meaning in 1964, did not encompass “sexual orientation” or “transgender” status. The majority determined that because the text of Title VII is unambiguous in its prohibition on discrimination because of sex, there was no need for it to resort to an analysis of legislative history.
According to the majority, Title VII’s “ordinary public meaning” clearly prohibits homosexual or transgender discrimination because “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.” The majority reasoned that “[s]ex plays an unmistakable and impermissible role in [a] discharge decision” because “homosexuality and transgender status are inextricably bound up with sex.”
The majority supported its conclusion with the following hypothetical: suppose an employer had two employees who were attracted to men, and suppose further that one was a male and one was a female. If the employer were to fire the male but permit the female to stay employed, then the employer would have discriminated against the male for traits or actions that it tolerated in the female. By intentionally singling out the male employee based in part on his sex, the employer would have violated Title VII.
The majority noted that when an employer fires an employee because she is homosexual or transgender, two causal factors are likely in play – the individual’s sex and something else (typically, the sex to which an individual is attracted to). In applying Title VII’s causation standard, the Court concluded that it does not matter if other factors besides the plaintiff’s sex contributed to the adverse employment action. Rather, it only matters that sex played some role in the decision. Because homosexual and transgender discrimination is in part based on sex, Title VII’s plain terms clearly prohibit it.
The majority also dismissed any argument that the employer never intended to discriminate based on sex but rather intended to discriminate specifically on homosexuality or transgender status. The majority wrote that “[i]t’s irrelevant what an employer might call its discriminatory practice, how others might label it, or what else might motivate it.” If an employer fires an employee for being homosexual or transgender, “it necessarily and intentionally discriminated against that individual in part because of sex.”
Justice Alito wrote a dissenting opinion joined by Justice Thomas, which accused the majority of acting as an activist court and improperly legislating instead of interpreting the law. Justice Alito viewed the majority’s opinion as an improper update of legislation to comport with society’s new norms and values. Justice Alito would rather Congress had taken responsibility for updating Title VII, especially when, in Justice Alito’s view, Title VII’s ordinary meaning does not extend protection to homosexual or transgender individuals. In a less critical tone, Justice Kavanaugh wrote a separate dissenting opinion, where he emphasized his concerns about what he believed to be a transgression on the Constitution’s separation of powers – namely Congress’s power to legislate and make policy decisions.
Undoubtedly, this opinion will have significant implications for employers as it firmly adds sexual orientation and transgender status to the protected classes under Title VII. The opinion will likely trigger added litigation concerning adverse employment actions and employees who might identify as transgender or homosexual. To the extent that policies do not already exist, employers should consider implementing policies and training associated with prohibiting this type of discrimination. If you would like to have a more in-depth discussion on this opinion and the ramifications for your business, please contact us at your convenience.