United States Supreme Court Expands Protection Based On Sexual Preference And Identity

By: Stephen J. Rynn

In a recent landmark decision, the US Supreme Court expanded Title VII of the Civil Rights Act of 1964 to protect individuals from employment discrimination based on sexual orientation or gender identity.

The Court’s decision arose out of three separate cases[1] wherein employers terminated employees who revealed they were homosexual or transgender. The plaintiffs brought suit under Title VII, which provides in relevant part, that it is “unlawful . . . for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual . . . because of such individual’s race, color, religion, sex, or national origin.” The employers argued that the reference to “sex” was limited to bias solely against men or women and not their sexual orientation and/or gender identity.

The Court, recognized that sexual preference or identity are not the same as “sex” and that the drafters of the legislation in 1964 likely did not intend to cover sexual preference or identity. But, the Court held that discrimination based on preference or identity are so inextricably linked with discrimination based on sex that the practice cannot and should not be allowed. Justice Gorsuch, writing for the majority, summarized the relationship between the two as follows:

Consider, for example, an employer with two employees, both of whom are attracted to men. The two individuals are, to the employer’s mind, materially identical in all respects, except that one is a man and the other a woman. If the employer fires the male employee for no reason other than the fact he is attracted to men, the employer discriminates against him for traits or actions it tolerates in his female colleague.

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Or take an employer who fires a transgender person who was identified as a male at birth but who now identifies as a female. If the employer retains an otherwise identical employee who was identified as female at birth, the employer intentionally penalizes a person identified as male at birth for traits or actions that it tolerates in an employee identified as female at birth. Again, the individual employee’s sex plays an unmistakable and impermissible role in the discharge decision.

So, what does that mean for employers? As always, whenever there is a development in the law it is a good reminder to look at your human resources policies and make sure they are up-to-date. Additionally, and as human resource professionals and supervisors are aware, training and education on the policies and procedures is even more vital. It is especially important to note that discrimination based on sexual orientation or preference do not have to be the sole or leading cause. As the Court laid out in its recent decision:

An employer violates Title VII when it intentionally fires an individual employee based in part on sex. It makes no difference if other factors besides the plaintiff’s sex contributed to the decision or that the employer treated women as a group the same when compared to men as a group. A statutory violation occurs if an employer intentionally relies in part on an individual employee’s sex when deciding to discharge the employee.

For more information, contact Fletcher & Sippel’s Labor & Employment Group.

[1] Bostock v. Clayton County, Altitude Express, Inc. v. Zarda, and R.G. & G.R. Harris Funeral Homes, Inc. v. EEOC