In Blog, Labor & Employment Blog

On June 15, 2020, the U.S. Supreme Court ruled in a 6-3 decision that Title VII’s protections from discrimination on the basis of sex extend to sexual orientation and gender identity.  This decision reversed Eleventh Circuit precedent on the issue, and resolves an existing split among the U.S. Courts of Appeals.

It is well-established that an employer violates Title VII when it intentionally fires an employee based in part on sex, even if factors other than the employee’s sex contributed to the decision. As the Court observed, employers can easily identify some other non-protected trait and insist that it was the most important consideration in an adverse employment decision. However, the Court determined that, in Title VII, Congress adopted broad language making it illegal for an employer to rely on an employee’s sex when deciding to fire that employee. Even where “sex” refers only to biological distinctions between male and female, an employer who fires an employee for failing to live up to traditional gender stereotypes violates Title VII.

An employer who fires an individual based on their sexual orientation or gender identity fires that employee for traits or actions it would not have questioned in a member of a different sex. The Court contemplated that in firing a male employee for being attracted to another male, it necessarily discriminates against that employee for behavior it would tolerate if that employee were a woman. Similarly, if an employer discriminates a person for being transgender, the employer is quintessentially penalizing that employee for identifying as a different sex today than the employee did at birth; employees who identify as the same sex that they did at birth would not be similarly penalized. In both situations, the employer must have contemplated some aspect of the individual’s sex. Therefore, when making decisions regarding homosexual and transgender employees, an employer necessarily applies sex-based rules and, therefore, intentionally discriminates.

Moreover, in interpreting the protections of Title VII, the Court made clear that it is not limited to whether its application of Title VII was anticipated by Congress in enacting the legislation. Indeed, whether or not Congress contemplated this specific application is not relevant in answering the question of whether sex discrimination occurred. Indeed, same-sex sexual harassment and refusing to hire women with young children were likely not contemplated at the time Title VII was enacted, but such practices nonetheless have been found to be discrimination on the basis of sex. Oncale v. Sundowner Offshore Services, Inc., 523 U. S. 75 (1998); Phillips v. Martin Marietta Corp., 400 U. S. 542 (1971). The Court recognized that its responsibility was to the statute’s text and to apply the broad rule where the statute provides no exceptions. Here, Congress chose not to include homosexuality or transgender as an exception, and therefore, the broad rule is applied. Discrimination on the basis of sexual orientation or gender identity is discrimination on the basis of sex that is prohibited by Title VII.

This is a historic decision and will have a wide-ranging impact on the workplace.  Should you have questions regarding the case or its impact on the workplace, please do not hesitate to contact any of our Labor & Employment Division attorneys.

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