6.15.20

In a 6-3 decision written by Justice Neil Gorsuch, the U.S. Supreme Court ruled today that discrimination based on sexual orientation or gender identity is a form of “sex” discrimination prohibited by Title VII.

Justice Gorsuch was joined by Chief Justice John Roberts, and Justices Stephen Breyer, Ruth Bader Ginsburg, Elena Kagan, and Sonia Sotomayor. Justice Samuel Alito dissented, joined by Justice Clarence Thomas, and Justice Brett Kavanaugh wrote a separate dissent.

The decision resolved three lower court decisions: Bostock v. Clayton County and Altitude Express v. Zarda (U.S. Courts of Appeal for the Eleventh and Second Circuits, respectively, and both cases involving sexual orientation discrimination) and R.G. and G.R. Funeral Homes, Inc. v. EEOC (U.S. Court of Appeals for the Sixth Circuit, and involving gender identity discrimination). A listing of the states in each of the circuits is available here.

The decision resolves an issue that has been debated for years: As of today, employment discrimination based on sexual orientation or gender identity is prohibited by federal law. In addition to applying to employment decisions made in the future, the decision will apply to pending cases as well as employment decisions that have been made within the applicable charge-filing period.

Discussion

The primary rationale for the majority decision was that people who are discriminated against because of their sexual orientation or gender identity would not have been treated disparately “but for” their sex. In other words (for example), a gay man is discriminated because he is a man who is attracted to men. A similarly situated woman who is attracted to men would not be subjected to discrimination. The same rationale applied to gender identity, according to Justice Gorsuch: A biological male who presents as a woman would not be discriminated against “but for” the fact that the individual is a biological male. A similarly situated biological female who presented as a woman would not be subject to discrimination.

Justice Gorsuch analogized to prior Supreme Court decisions, including those finding that sexual harassment was a form of “sex discrimination” even though it is not specifically mentioned in Title VII. Justice Gorsuch also cited an earlier Supreme Court decision involving women who were discriminated against not because they were women per se but because of their status as mothers. The Court found that “motherhood discrimination” violated the Title VII prohibition on sex discrimination.

In addressing concerns expressed during oral argument and elsewhere that the Court’s decision could lead to unisex bathrooms and dressing rooms, or infringe on the religious rights of employers, Justice Gorsuch said that today’s decision did not extend that far and that those issues could be resolved in subsequent decisions.

Impact and steps for employers

For many employers and in many jurisdictions, the Court’s decision may not have a significant impact. Many state and local laws already prohibit, and many companies have voluntarily adopted policies prohibiting, employment discrimination on these bases. In addition, federal contractors have been required to prohibit LGBT discrimination and harassment since the Obama Administration.

However, for employers who are not federal contractors, who have older internal policies, or who have operations in jurisdictions that do not have these laws, the Court’s decision represents a significant expansion of Title VII as many employers understood it. Employers should take the following steps as soon as possible:

  • Review your equal employment opportunity policies to determine whether your company prohibits discrimination or harassment based on sexual orientation and gender identity. If not, amend your policies to include those provisions.

  • Promptly communicate the policy updates to all employees.

  • In some work environments, there may be a risk of “reverse discrimination” against heterosexual employees. We believe that would also violate Title VII as interpreted by the Supreme Court.

  • If your harassment training has not historically addressed harassment based on sexual orientation or gender identity, consider promptly conducting a “mini-session” addressing those subjects, and then include it in your regular training going forward.

  • In determining whether to take adverse action against an employee, ensure that your review includes consideration of whether the employee’s sexual orientation or gender identity played any role in the proposed decision.

  • Take appropriate steps to avoid discriminating in hiring against applicants based on sexual orientation or gender identity.

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