News & Insights

Title Vii Prohibits Discrimination On The Basis Of Sexual Orientation And Gender Identity

On June 15, 2020, the United States Supreme Court ruled that Title VII of the Civil Rights Act of 1964 (“Title VII”) protects gay, lesbian and transgender persons in their employment. Prior to the Supreme Court’s ruling, the law had no specific protection for sexual orientation or gender identity. The Court’s decision has resolved a conflict among several federal circuits as to whether Title VII prohibits employment discrimination on the basis of sexual orientation and gender identity.

This was a somewhat surprising decision from a predominately conservative court that decided by a 6-3 vote that a key provision of Title VII encompasses bias against gay and transgender employees. As written by Justice Neil Gorsuch, “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.”

The Supreme Court’s decision involved three separate cases:  (1) Altitude Express v. Zarda; (2) Bostock v. Clayton County, Georgia; and (3) R.G. & G.R. Harris Funeral Homes, Inc. v EEOC.   In Zarda, the Second Circuit had reversed the dismissal of a gay male’s sex-based wrongful termination claim who claimed he was terminated for revealing his sexual orientation to students.   In Bostock, the Eleventh Circuit had upheld the dismissal of a sex-based termination claim by a gay male child welfare services coordinator who claimed he was fired after his supervisors learned of his sexual orientation.  The Supreme Court consolidated the two cases to decide whether Title VII prohibits discrimination on the basis of sexual orientation.

The third case, R.G. & G.R. Harris, in which the EEOC filed a claim on behalf of a transgender female funeral director who was terminated for violation of her employer’s dress code when she wore women’s clothes, was heard separately. The Sixth Circuit held that the termination was unlawful discrimination on the basis of “sex stereotyping”.   The Supreme Court agreed.

The Supreme Court’s rulings in both cases are landmark decisions, impacting the LGBT community, as well as the internal policies of employers nationwide. Employers should take immediate steps to revisit their employee handbooks and policies to ensure they prohibit discrimination, harassment and retaliation associated with an employee’s sexual orientation and transgender status.