Supreme Court Extends Title VII to Sexual Orientation and Gender Identity

Supreme Court Extends Title VII to Sexual Orientation and Gender Identity

By: Allison Davis, J.D.

On June 15, 2020, the United States Supreme Court issued a landmark ruling that Title VII of the Civil Rights Act of 1964 prohibits discrimination based on sexual orientation and gender identity. Prior to this ruling, federal appellate courts across the United States were split on whether Title VII’s prohibition on discrimination “because of sex” extended to sexual orientation and gender identity.

Justice Neil M. Gorsuch, President Donald Trump’s first appointee to the United States Supreme Court, authored the 6-3 opinion. Justice Gorsuch wrote: “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 undistinguishable role in the decision, exactly what Title VII forbids.” In short, the Court ruled that prohibition of discrimination “because of sex” prohibits discrimination based on gender identity and sexual orientation.

The Court considered three cases in issuing its opinion: Bostock v. Clayton County, Georgia and Altitude Express, Inc. v. Zarda, a pair of sexual orientation discrimination cases, and EEOC v. R.G. & G.R. Harris Funeral Homes, a gender identity discrimination case. The trio of cases included allegations of employee terminations based on sexual orientation and gender identity. Gerald Bostock was fired from a government program in Clayton County, Georgia after joining a gay softball league. Skydiving instructor, Donald Zarda, was fired after reassuring a female customer who expressed concerns about being strapped to him during a tandem dive that he was “100 percent gay.” In R.G. & G.R. Harris Funeral Homes, Aimee Stephens was terminated by her employer, a Michigan funeral home, two weeks after she informed the company she was transgender and would begin dressing as a woman at work.

The Court did not address how its decision might affect religious employers but noted that Title VII includes protections for religious employers and that the First Amendment permits religious groups latitude in their employment decisions. It is likely the Court will address this issue in a separate opinion at a later date.

Employers should immediately review and update their existing equal employment and non-discrimination policies to expressly include sexual orientation and gender identity.

Employers should immediately review and update their existing equal employment and non-discrimination policies to expressly include sexual orientation and gender identity.

This is not a legal opinion. You should contact your attorney if the case is of significance to you.

Allison Davis is a member of Brown & Fortunato’s Labor and Employment team where she is a shareholder. She represents clients in a wide range of employment litigation, pre-litigation, and counseling matters, including employment discrimination, non-competition disputes, wage and hour issues, and business disputes. The Labor and Employment team at Brown & Fortunato can be reached at 806-345-6300. You can contact Allison Davis directly at adavis@bf-law.com.