On June 15, 2020, the U.S. Supreme Court issued a long-anticipated ruling that sexual orientation and gender identity fall within Title VII of the Civil Rights Act of 1964’s sexual discrimination protections and thus, it is unlawful for employers to discriminate against employees for being homosexual or transgender.

The Court determined that the Civil Rights Act requires employers with more than 15 employees treat male and female employees equally, regardless of their sexuality or biological gender at birth and regardless of being gay, lesbian, straight, or transgender.

The issue came to the court in three appeal cases.  Two cases involved discrimination based on sexual orientation.  The EEOC filed the third case and involved the rights of transgender employees.

Justice Neil Gorsuch, a conservative Trump appointee, wrote the decision for the majority, stating that “An individual’s homosexuality or transgender status is not relevant to employment decisions.  That’s because it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”

For the case regarding sexual orientation discrimination, the court used an example of two employees who were both attracted to men; one male and one female.  To the employer, the employees are equal in their abilities and are the same other than their gender.  An employer that fires the man for no reason other than having an attraction to men has discriminated against him for traits or actions it tolerated in his female colleague.

The court used an example of two employees who identify as female for the transgender case; one who was identified as female at birth and the other who was identified as male and is transgender.  If the employer penalizes the individual who was identified as male at birth for traits or actions that it tolerated in an employee identified as female at birth, the employee’s sex has played an unmistakable and unlawful role in the discharge decision.

The court provided three key principles in the review of the cases:

1. It is irrelevant what an employee might call its discriminatory practice, how others might label it, or what else might motivate it.  When an employer fires an employee for being homosexual or transgender, it necessarily intentionally discriminates against that individual in part because of sex.
2. An individual’s sex need not be the sole or primary cause of the employer’s adverse action.  It is of no significance if another factor, such as an individual’s attraction to the same sex or presentation as a different sex from the one assigned at birth, might also be at work, or even play a more important role in the employer’s decision.
3. An employer cannot escape liability by demonstrating that it treats males and females comparably as groups.  An employer who intentionally fires an individual homosexual or transgender employee in part because of their sex violates the law even if the employer is willing to subject all male and female homosexual or transgender employees to the same rule.

An employer who fires an individual for being homosexual or transgender defies the new law of the land.  Until this ruling, this type of discrimination was still permitted in 26 states.  Each of the New England states and New York already have laws providing protection to employees on the basis of sexual orientation and gender identity.  Therefore, employers in those states should already be in compliance with the new ruling.

Businesses with more than 15 employees that do not currently recognize sexual orientation and transgender status in their employee handbooks should review and update their information.  Employers should review their handbooks and other policies as well as hiring, antiharassment training and other employment practices to ensure compliance. For more information or assistance in preparing training materials, please contact Peter Bennett (pbennett@charlesc48.sg-host.com) or Rick Finberg (rfinberg@charlesc48.sg-host.com).