This week the U.S. Supreme Court ruled that Title VII — the main federal anti-discrimination law on the books — prohibits discrimination against employees who are lesbian, gay, bisexual, and/or transgender (LGBT). The decision was 6-3, with Justice Neil Gorsuch writing for the majority.
The opinion is just under 120 pages long, with two dissents and very strong language on both sides. To save you from digging through the opinion, here’s what you need to know:
What got us here?
For anyone who has not been following this issue, this may seem like a sudden change in the law. However, this decision is the culmination of decades of lawsuits from lesbian, gay, bisexual, and transgender employees that, not surprisingly, resulted in a lot of conflicting decisions at the trial court and appellate court levels. When such a split among the circuit courts occurs, the Supreme Court can step in – in this case, to decide the question of whether LGBT rights are covered under Title VII. You can read more about this history in our previous posts.
Legally speaking, how did the Supreme Court reach this decision?
The question before the Supreme Court was does Title VII’s prohibition against discrimination “on the basis of sex” apply to discrimination against LGBT employees? The Supreme Court’s opinion — and answer to this question — was the result of consolidating three cases:
- Bostock v. Clayton County, Georgia (sexual orientation is not covered by Title VII),
- Zarda v. Altitude Express, Inc. (sexual orientation is covered by Title VII), and
- G. & G.R. Harris Funeral Homes, Inc. v. EEOC, (transgender status is covered under Title VII).
Each of these cases hinged on the language of Title VII that provides an employer may not discriminate “on the basis of . . . sex.” As noted above, some courts said Title VII protected LGBT employees while others ruled it did not.
The plaintiffs’ arguments in these cases were that “sex” is an integral part of the discrimination against lesbian, gay, and transgender employees. For example, if an employer fires an employee because he is gay, the employer has fired him because he is a man who dates men. Because the employer does not fire female employees who date men, the decision is based on the employee’s sex. Similarly, if an employer does not promote a transgender woman because she is transgender, the decision is based on the employee’s sex (i.e., because she presents herself as a woman).
If this sounds complicated, the court’s opinion puts it simply:
“[s]ex plays a necessary and undisguisable role in the[se] [employment] decision[s], exactly what Title VII forbids.”
In other words, discrimination against LGBT employees cannot be separated from discrimination on the basis of sex.
What does this mean for you?
You, like every employer in America, are already familiar with Title VII’s anti-discrimination provisions. The Supreme Court’s opinion does not change Title VII’s prohibitions against discrimination; rather it extends those prohibitions to include discrimination based on an employee’s lesbian, gay, bisexual, or transgender status. So, you don’t have to reinvent your employment practices. Instead, review your current policies and practices and, where applicable, expand the definitions of “sex” and “sex discrimination” to include employees who are LGBT. You should also make sure that managers and decision makers with hiring, firing, and directing authority understand this expansion of the law.
What should I do now?
Every workplace is different but here are some steps to consider:
- Update your EEO and harassment policies to make clear that you prohibit discrimination based on sexual orientation or gender identity. Your policy probably already prohibits sex discrimination so that should not be a difficult fix. Don’t forget to change it everywhere — such as on job applications, bid forms, and websites.
- Train your supervisors and managers on this change.
- Update your EEO and harassment training for all employees to make sure everyone knows that LGBT employees are now covered.
- Consider whether you should prepare a policy or some guidelines for a transgender employee to address transitioning.
Before this decision, even though the federal law did not mandate it, cautious employers typically did not consider the LGBT status of their employees when making employment decisions. Now all employers must disregard LGBT status when making employment decisions.
Bradley has long prohibited discrimination based on LGBT status, and we have worked with many clients to revise their policies and employee training to address these protections. As employment lawyers, we welcome the challenge of bringing these new protections to your workforce. The full force of the law requires it.