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Supreme Court Rules That Title VII Covers LGBTQ Employees

June 19, 2020

By Anthony Kaylin, courtesy of SBAM Approved Partner ASE

In a surprising six-three decision written by Justice Neil Gorsuch, the Supreme Court ruled on Monday that Title VII of the 1964 Civil Rights Act protects LGBTQ rights (Bostock v. Clayton County Georgia, No. 17-1618 (June 15, 2020)).  Before the decision, 21 states had their own laws prohibiting job discrimination based on sexual orientation or gender identity, and seven more provided that protection only to public employees.  Michigan does not provide any protections under state law but a proposed 2020 ballot initiative, “The Fair and Equal Michigan”,  would re-define the word “sex” in the law to include sexual orientation and gender identity or expression, effectively extending those protections to LGBTQ individuals.

The three cases that were the subject of the rulings concerned Gerald Bostock, who had been employed as a social worker for the Clayton County juvenile court and then was fired after he was listed in a newspaper article as a player in the gay softball league.  The second was Donald Zarda, a skydiving instructor from New York who was fired after he told a female client not to worry about being strapped tightly to him during a jump, because he was “100 percent gay.”  The third case was the Michigan case of Aimee Stephens, whom the 6th Circuit ruled she was impermissibly fired from her job at a Michigan funeral home two weeks after she told her boss she was transgender.

Both Ms. Stephens and Mr. Zarda passed away before the court ruled.

The Trump Administration tried to persuade the court to rule otherwise.  In its brief, the Justice Department wrote that “[t]he ordinary meaning of ‘sex’ is biologically male or female; it does not include sexual orientation. An employer who discriminates against employees in same-sex relationships thus does not violate Title VII as long as it treats men in same-sex relationships the same as women in same-sex relationships.” 

Further, the employers also argued that intentional discrimination against employees based on their homosexual or transgender status is not a basis for Title VII liability.

It should be noted that the EEOC, which has pushed for a broad reading of Title VII, did not join the Justice Department’s brief in the Supreme Court and had conflicting briefs in the Zarda case.

However, Justice Gorsuch wrote that “[t]hose who adopted the Civil Rights Act might not have anticipated their work would lead to this particular result. Likely, they weren’t thinking about many of the Act’s consequences that have become apparent over the years, including its prohibition against discrimination on the basis of motherhood or its ban on the sexual harassment of male employees. But the limits of the drafters’ imagination supply no reason to ignore the law’s demands. When the express terms of a statute give us one answer and extratextual considerations suggest another, it’s no contest. Only the written word is the law, and all persons are entitled to its benefit.”

 “Title VII makes it ‘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 straightforward application of Title VII’s terms interpreted in accord … with their ordinary public meaning at the time of their enactment resolves these cases.”

The court further held that “[a]n 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. An employer who fires an individual merely for being gay or transgender violates Title VII.”

Therefore, Title VII of the Civil Rights Act of 1964 covers LGBTQ rights, specifically sexual orientation and gender identity.  Employers who haven’t already updated their EEO policies should do so.  There are still unanswered questions, such as the conflict of religious beliefs with sexual orientation and gender identity, bathrooms, locker rooms, dress codes etc.   The court stated specifically, “Under Title VII, too, we do not purport to address bathrooms, locker rooms, or anything else of the kind.”  Furthermore, the court stated that “[w]hether other policies and practices might or might not qualify as unlawful discrimination or find justifications under other provisions of Title VII are questions for future cases, not these.” For these questions, employers should confer with legal counsel.

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