On June 15th, 2020, in a 6-3 decision, the U.S. Supreme Court ruled that employment discrimination on the basis of sexual orientation and/or gender identity is prohibited under federal civil rights law, speficially Title VII of the 1964 Civil Rights Act (Title VII).
In the majority opinion, Justice Neil Gorsuch stated: “An 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.”
By definition, Title VII explicitly prohibits discrimination in the workplace on the basis of race, religion, national origin, and sex. In this decision, the court has ruled that the idea of “sex” is a distinct characteristic but inseparable from the concepts of sexual orientation and gender identity.
The court’s ruling was based on two sets of cases. The first set concerned a pair of lawsuits from gay men who said they were fired because of their sexual orientation (Bostock v. Clayton County, Ga., No. 17-1618, and Altitude Express Inc. v. Zarda, No. 17-1623). The second set involved a case on gender identity where a transgender woman claimed she was fired after she announced her gender identity and informed coworkers that she would start working in women’s clothing (R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission, No. 18-107).
While Title VII only applies federally to employers with 15 or more employees, 21 states have their own laws prohibiting job discrimination based on sexual orientation or gender identity. Seven more provide that protection only to public employees. Some of these state laws could apply to small employers with as few as 1 employee, depending on the state. Employers need to investigate which, if any, state-specific sexual orientation and/or gender identity anti-discrimination laws they need to follow, and make sure that all employees are fully trained on the workplace’s discrimination prevention policies and procedures.