U.S. Supreme Court: Title VII Bans Discrimination Based on Sexual Orientation and Gender Identity
Following in the footsteps of several states, including ColoradoFN1, that have protections for employees from workplace discrimination based on sexual orientation and gender identity,FN2 the U.S. Supreme Court ruled this week that federal law Title VII of the Civil Rights Act of 1964 (“Title VII”) protects LGBTQFN3 employees from employer discrimination.
In a 6-3 decision FN4 that consolidated three cases and resolved a split among various U.S. Circuit Courts,FN5 Justice Neil Gorsuch wrote in the majority opinion that "Today, we must decide whether an employer can fire someone simply for being homosexual or transgender. The answer is clear. 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."FN6
Takeaway
It is now illegal for employers to discriminate on the basis of sexual orientation and gender identity in all 50 states. Employers located in states that did not already prohibit discrimination on these bases will need to review and revise their existing policies and training materials, and ensure relevant personnel are trained on these new requirements. Please contact the attorneys at Campbell Litigation, P.C. to assist with questions regarding compliance.
Footnotes:
FN1 – Since 2007, the Colorado Anti-Discrimination Act (CADA) has prohibited discrimination based on sexual orientation, broadly defined as "a person’s orientation toward heterosexuality, homosexuality, bisexuality, or transgender status or an employer’s perception thereof." See Colorado Revised Statutes § 24-34-401 et. seq. and § 24-34-301.
FN2 - 22 states & D.C. have laws that prohibit discrimination based on sexual orientation and gender identity (California, Colorado, Connecticut, Delaware, District of Columbia, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, Nevada, New Hampshire, New Jersey, New Mexico, New York, Oregon, Rhode Island, Utah, Vermont, Virginia, Washington); Wisconsin state laws prohibit discrimination based on sexual orientation only; 6 states have laws that prohibit discrimination against public employees based on sexual orientation and gender identity (Indiana, Kentucky, Michigan, Montana, Ohio, Pennsylvania); and 4 states have laws that prohibit discrimination against public employees based on sexual orientation only (Alaska, Arizona, Missouri, North Carolina). See https://www.hrc.org/
FN3 - LGBTQ is an acronym for lesbian, gay, bisexual, transgender and queer or questioning. These terms are used to describe a person’s sexual orientation or gender identity.
FN4 - Justices Gorsuch, John Roberts, Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan comprised the majority. Justices Samuel Alito and Brett Kavanaugh dissented, with Justice Clarence Thomas joining Justice Alito.
FN5 – In Altitude Express v. Zarda, Case No. 17-1623, involving a skydiving company instructor who was fired after telling a customer that he is gay, the 2nd U.S. Circuit Court of Appeals found that Title VII’s prohibition on discrimination based on sex includes sexual orientation. In Bostock v. Clayton County, Case No. 17-1618, the 11th U.S. Circuit Court of Appeals found that Title VII did not prohibit discrimination based on sexual orientation where a county child welfare services coordinator alleged that he was fired after his employer found out that he is gay. In R.G. & G.R. Harris Funeral Homes v. Equal Employment Opportunity Commission, Case No. 18-107, the 6th U.S. Circuit Court of Appeals, found that Title VII protected a funeral home director who was fired after disclosing that she was transitioning from male to female.