Deep Dive: Supreme Court Rules that Title VII Forbids LGBTQ Discrimination

Discrimination in the workplace on the basis of a worker’s sexual orientation or gender identity is forbidden under federal equal employment opportunity laws, the U.S. Supreme Court ruled earlier this week.

In a 6-3 ruling, the nation’s highest court held that the protections guaranteed under Title VII of the Civil Rights Act of 1964 also cover the LGBTQ community.

Justice Neil Gorsuch and Chief Justice John Roberts  joined the court’s liberal justices in making the historic ruling.

“Today, we must decide whether an employer can fire someone simply for being homosexual or transgender. The answer is clear,” Gorsuch wrote. “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.”

Title VII of the Civil Rights Act of 1964 is a federal law that prohibits employers from discriminating against employees and job applicants on the basis of sex, race, color, national origin, and religion. It applies to employers with 15 or more employees, including federal, state and local governments as well as private and public colleges.

However, until the court’s June 15 decision, members of the LGBTQ community weren’t explicitly protected from discrimination under Title VII.

Business and EEOC support

Business groups applauded the court’s decision.

“The U.S. Chamber of Commerce is pleased that, as a result of today’s Supreme Court ruling, federal law prohibits discrimination in the workplace against gay, lesbian and transgender employees. Combatting discrimination also allows our diverse workforce and free enterprise system to reach its full potential,” Neil Bradley, executive vice president and chief policy officer, said in a statement released the same day as the legal decision.

The National Association of Manufacturers (NAM) noted in a statement that the ruling “not only sends a powerful message of inclusion and equality to millions of Americans but also affirms that LGBT Americans cannot be fired just for being their authentic selves at work,” according to NAM CEO Jay Timmons.

AFL-CIO President Richard Trumka also praised the decision in a press statement, calling it a “momentous step forward for equality” and noting that “the Supreme Court has affirmed the labor movement’s long held conviction, in our collective bargaining agreements and our activism, that no one should be fired because of who they are.”

A number of high-profile businesses had advocated for such a result while the trio of cases that brought the issue to the court’s attention was under consideration. More than 200 U.S. corporations, including AT&T, Amazon, Apple, Bank of America, Bloomberg, eBay, Estee Lauder, Facebook, KickStarter, and Levi Strauss signed off on a brief urging the court to find that Title VII’s prohibition on discrimination based on sex includes both sexual orientation and gender identity.

The federal agency that enforces Title VII was already onboard with such a reading of the law. The U.S. Equal Employment Opportunity Commission (EEOC) has taken the position since 2015 that Title VII forbids discrimination based on gender identity and sexual orientation.

Opposition

However, the Trump Administration, through the U.S. Department of Justice, disagreed.

In a brief filed in one of the cases involved in the recent court ruling, the Justice Department argued to the Supreme Court that transgender persons are not protected from discrimination at work on the basis of their transgender status under U.S. federal law because Title VII “simply does not speak to discrimination because of an individual’s gender identity or a disconnect between an individual’s gender identity and the individual’s sex.”

The Justice Department also said the “the ordinary meaning of ‘sex’ is biologically male or female; it does not include sexual orientation.”

The court’s newest member, Justice Brett Kavanaugh, dissented from the majority opinion, writing that it is the role of Congress to amend Title VII. Justice Samuel Alito also dissented, filing an opinion that was joined by Justice Clarence Thomas.

Split in the circuits

The Supreme Court’s decision resolves a split in the nation’s federal appellate circuits. The 2nd , 6th and 7th Circuits have found legal protection for such workers under federal law but the 5th and 11th Circuits have not.

Trio of cases

The issue came to the nation’s top court from a trio of cases: Bostock v. Clayton County, Georgia; Altitude Express, Inc., et al. v. Zarda, Melissa, et al. and R.G. & G.R. Harris Funeral Homes v. EEOC, et al.

Two of the cases, Bostock and Zarda, were combined to consider the question of whether gay workers are covered by Title VII.

In Bostock, Gerald Bostock, a long-term employee for Clayton County, Georgia., claims he was fired from his job as a social worker after he began participating in a gay recreational softball league. He said shortly after that, he was criticized for his participation in the league and for his sexual orientation and identity, including disparaging comments from co-workers. A 3-judge panel in the 11th U.S. Circuit Court of Appeals held that Title VII doesn’t prohibit discrimination on the basis of sexual orientation.

Donald Zarda, who died in 2014, said he was fired as a skydiving instructor after joking with a female client to whom he was strapped for a tandem dive that he was gay. In Zarda, the 2nd U.S. Circuit Court of Appeals held that Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating against workers based on their sexual orientation

The third case dealt with transgender rights. Aimee Stephens, an employee at a funeral home, was fired shortly after she told her boss that she would begin presenting as a woman at work and would abide by the employer’s dress code for women. Stephens’ employment was terminated because of her transgender status as well as her failure to conform to sex stereotypes, in violation of Title VII, the 6th Circuit said. The court declared that “[d]iscrimination on the basis of transgender and transitioning status is necessarily discrimination on the basis of sex.”

State law

At least 21 states and the District of Columbia prohibit employment discrimination on the basis of sexual orientation and gender identity. Seven more provide that protection only to public employees. Those laws remain in effect. The Supreme Court’s decision means that federal law provides workplace protection for LGBTQ employees in the states that did not pass such laws.