An employer who fires an individual for being gay or transgender violates Title VII of the Civil Rights Act of 1964, according to a landmark 6-3 ruling from the U.S. Supreme Court. The decision holds that sexual orientation and gender identity are covered under the characteristic of sex, which has long been protected under Title VII.
What does the decision say for Title VII?
The majority decision, issued on June 15, clarifies this: “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.”
The ruling resolves a messy and long-standing split at the circuit court level. Previously, the Second, Sixth, and Seventh Circuits recognized one or both characteristics as protected. At the same time, the Eleventh Circuit rejected any protections based on sexual orientation. Other circuits took no stance at all.
In addition to the circuit court confusion, the Equal Employment Opportunity Commission had previously operated under the assumption that both traits were protected by Title VII, though it had begun reversing course more recently. This patchwork created headaches for multi-state employers, as well as confusion for LGBTQ employees across the country.
What does this mean for employers for Title VII?
Employers covered by Title VII (those with 15 or more employees) should immediately review their policies and procedures to ensure that they do not discriminate against any employees on the basis of sexual orientation or gender identity. This is particularly important for policies that govern hiring, recruiting, benefits administration, and discipline.
In addition, employers may want to consider including specific references to sexual orientation and gender identity in any anti-bullying or harassment training. It’s important to remember that harassment and discrimination can start at the employee level, too, so training will be essential.
The decision addresses three related cases: Bostock v. Clayton County, Georgia, and Altitude Express, Inc., et al. v. Zarda et al., which had been consolidated, and R. G. & G. R. Harris Funeral Homes, Inc. v. Equal Employment Opportunity Commission et al. The cases were first argued before the court on October 8, 2019.
Key to remember: LGBTQ workers share in the protections of Title VII on the basis of sex, meaning that employers may not discriminate against them based on sexuality or gender identity.
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