Landmark LGBTQ Civil Rights Decision Under Title VII

Alexander L. Reich

The U.S. Supreme Court issued a landmark decision on Monday, holding that Title VII of the Civil Rights Act of 1964, which prohibits discrimination because of “sex,” bars employers from discriminating based on an employee’s sexual orientation or gender identity.

SCOTUS’ ruling came through a set of three cases that were consolidated for oral argument. In Harris Funeral Homes v. EEOC, an employee was fired shortly after informing her employer of her intent to transition. She brought suit under Title VII and the Sixth Circuit ruled in her favor. In Altitude Express, Inc. v. Zarda, a skydiving instructor was fired after telling a patron that he was gay. The Second Circuit held that he was not protected by Title VII. Likewise, in Bostock v. Clayton County, GA, the Eleventh Circuit ruled that Title VII did not protect a gay employee who was fired after a colleague made a disparaging remark about the employee’s sexual orientation and participation in a gay softball league.

All three cases turned on the same issue: whether the phrase “sex,” as used in Title VII, includes an individual’s sexual orientation or gender identity. The employers argued that “sex” literally refers to status as male or female, as determined by reproductive biology. Conversely, the employees alleged that the definition of “sex” - even in 1964 when Title VII was passed - is broader and encompasses norms regarding sexual orientation and gender identity.

In a 6-3 opinion delivered by Judge Gorsuch, SCOTUS held that, given the literal meaning of “sex,” Title VII’s prohibition of discrimination on the basis of sex always includes discrimination motivated by sexual orientation and transgender status. The Court summarized its opinion with the following example:

“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. Put differently, the employer intentionally singles out an employee to fire based in part on the employee’s sex, and the affected employee’s sex is a but-for cause of his discharge.”

In taking this literal interpretation, the Court did not change or expand the definition of “sex,” but the scope of the prohibition of sex discrimination. The Court cited a number of prior decisions to support this interpretation, including those addressing sex stereotyping, same sex sexual harassment, discrimination against mothers, and differential pricing of life insurance. 

The Court was careful to note that it was not addressing other issues, including actions based upon religious principles or any issues relating to separate facilities.  

Justice Alito’s dissenting opinion, joined by Justice Thomas, labeled the Court’s decision “arrogant,” and noted the myriad of laws likely to be challenged based on the holding, including Title IX, state laws prohibiting transgender students from competing in school sports in accordance with their gender identity, the military’s ban on transgender members, state health plans’ exclusion of coverage for sex reassignment procedures, change of gender on birth certificates, change of gender on driver’s licenses, school policies requiring students to use the bathrooms that correspond to their sex on birth certificates, and various issues involving transgender prisoners. Justice Kavanaugh dissented separately, stating that the Court had violated separation of powers by effectively amending Title VII and using a literal definition of “sex” instead of the ordinary definition, which distinguishes sex, sexual orientation, and gender identity. However, Justice Kavanaugh also acknowledged “the important victory achieved today by gay and lesbian Americans. Millions of gay and lesbian Americans have worked hard for many decades to achieve equal treatment in fact and in law.”

Many employers already prohibit discrimination on the basis of sexual orientation of gender identity due to state or local laws or employer policy. Other employers should review their Equal Employment Opportunities policies and update them as necessary to ensure that they clearly prohibit discrimination based on sexual orientation and gender identity. Likewise, managers should be trained to understand that discrimination on these new protected classes will not be tolerated.

Should you have any questions about SCOTUS’ decision, or if you would like to discuss any EEO issues, please contact your regular Saul Ewing’s labor and employment attorney.