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Title VII Protects from Discrimination Against LGBTQ+

June 15, 2020
Taylor Isaac
Posted in: Labor & Employment

The Supreme Court of the United States issued a landmark ruling on Monday, June 15, 2020, extending federal civil rights protection to the LGBTQ+ community. In a 6-3 opinion written by Justice Neil Gorsuch, the Supreme Court determined that “[s]ex plays a necessary and undisguisable role” in adverse employment decisions based on things like homosexuality or being transgender. The decision comes after three cases – one each from the Second, Sixth, and Eleventh Circuits – were argued together in October 2019.  In each case, a long-time employee was fired for being homosexual or transgender, and the employees sued for discrimination under Title VII of the Civil Rights Act of 1964.

Title VII prohibits “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.”  Circuit Courts had previously been divided on whether “sex,” which by definition in 1964 referred to biological distinctions between male and female, encompassed issues of sexual orientation or gender identification.  However, the Supreme Court focused more on the “because of” phrasing of Title VII, which means that Title VII applies a test of “but-for causation.”  Due to this, the Court took direction from cases involving discrimination against mothers with young children, a requirement of increased pension fund contributions for women because of longer life expectancy, and a sexual harassment claim by a male against coworkers of the same sex.  Each of these cases led the Court to conclude that labels or motivations for a discriminatory practice are irrelevant, and that sex does not need to be the sole, or even primary, cause of the employer’s adverse action.  Additionally, an employer cannot escape liability for intentionally terminating an employee based in part on that individual’s sex by subjecting all male and female homosexual or transgender employees to the same rule, as Title VII is focused on the treatment of an individual.

However, the above case comparisons were simply used as additional support, provided after reaching a conclusion based on statutory and interpretation and logical reasoning.  To summarize the Court’s opinion in the most concise manner, it held that “homosexuality and transgender status are inextricably bound up with sex” to the point that “to discriminate on these grounds requires an employer to intentionally treat individual employees differently because of their sex.”

It is noteworthy that a concern was raised that complying with such a requirement under Title VII may require some employers to violate their religious convictions and violate the free exercise clause of the First Amendment.  While the Court acknowledged that is something to consider, it was left to be considered in a future case where such a defense was at issue before the Court.

The opinion can be found here.  Justice Gorsuch was joined by Chief Justice Roberts and Justices Ginsburg, Breyer, Sotomayor, and Kagan.  Justice Alito filed a dissenting opinion, joined by Justice Thomas.  Justice Kavanaugh also filed a dissenting opinion.