Supreme Court Rules LGBTQ Employees Are Protected From Discrimination

With a vote of 6-3, the Supreme Court ruled Monday that existing federal law under Title VII of the Civil Rights Act of 1964 applies to the LGBTQ community.

The ruling determines that sexual orientation and transgender status are protected under the law. The ruling upholds many lower court determinations that found discrimination on the basis of sexual orientation was a form of discrimination.

The Supreme Court extends the prohibition of job discrimination against persons in the gay, lesbian, and transgender community.

Justice Neil Gorsuch, President Trump’s first appointee to the Supreme Court, delivered an opinion stating, “An employer who fired 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.”

The ruling determines that sexual orientation and transgender status are protected under the law. The ruling upholds many lower court determinations that found discrimination on the basis of sexual orientation was a form of discrimination.

Gorsuch reasoned the original drafters of Title VII may not have anticipated this result, but the limits of their imagination in the 1960s didn’t place limits on the legislation itself. “Only the written word is the law,” he wrote, “and all persons are entitled to its benefit.”

The language of Title VII made it illegal for employers to discriminate on the basis of sex, among other categories, which was originally interpreted as gender (male and female).

Courts, over the 50-plus years of the statute’s enactment, have argued the term encompasses more than simply gender. This ruling, by the Supreme Court, validates these to include sexual orientation.

Bringing LGBTQ rights to the highest court

The Supreme Court ruling addressed 3 lower court cases that were brought before them:

• A Georgia man, fired from his job as a child welfare advocate after joining a gay softball league
• A New York skydiving instructor fired after telling his employer he was gay, and
• A Michigan worker who, after 6 years of employment, told a funeral home employer that moving forward she would identify as female

In all 3 cases, the employers admitted terminating the employees because of their sexual orientation. They argued, however, that sexual orientation and identity were not covered under Title VII, and that the dismissals were therefore legal and not in violation of the law.

The Eleventh Circuit Court of Appeals agreed with the employers, upholding the Georgia ruling. However the Second and Sixth Circuit courts, which heard the other 2 cases respectively, ruled against the employers.

The Supreme Court ruling clarifies LGBTQ protection in employment for all workers, regardless of determinations by individual states or courts.

Oral arguments were heard by the Supreme Court in October of 2019. Of the 3 cases brought before the Supreme Court, only the plaintiff in the Georgia ruling survived to hear the ruling by the Court. The other 2 individuals died as their cases moved through the courts, but were continued by their estates.

State by state, court by court

Currently, 21 states and the District of Columbia have laws protecting sexual and gender orientation from employment discrimination. These laws are overwhelmingly supported by public opinion. A recent poll outlines a majority of Americans, 83%, believe it should be illegal to fire an employee based on their sexual orientation.

In addition to state laws, many cities and counties have also enacted legislation that prohibits employment discrimination based on sexual orientation and gender identity.

A recent poll outlines a majority of Americans, 83%,  believe it should be illegal to fire an employee based on their sexual orientation. 

These laws provide equal protection to members of the LGBTQ community with regard to all aspects of employment law.

In 12 Circuit Courts that provide guidance in 26 states, some protection has already been established to expand the interpretation of Title VII. In some, sexual orientation is a protected class; in others gender identity; still others protect both categories. The Supreme Court ruling verifies both are covered under the law across the nation, with no  room for ambiguity or interpretation by the lower courts or employers.

What the ruling means to employers

The ruling expands protection in all aspects of employment to persons in the LGBTQ community. These begin at the recruitment process, including interviewing and hiring practices.

For employees already on payroll, protection encompasses all provisions of employment, wages, benefits, promotions, and corrective actions.

The ruling establishes that sexual orientation must not be considered when making any determination with regard to employment. If the same rule, policy, or decision would not be made if the employee was not a part of the LGBTQ protected class, it is considered a violation under Title VII.

If employers haven’t already enacted policies that prohibit harassment on the basis of sexual orientation and/or gender identity, today’s ruling will make it imperative to do so immediately. 

The ruling also extends protections on the basis of harassment, an important clarification for the community. A recent Glassdoor survey found  53% of LGBTQ respondents revealed they experienced or witnessed anti-LGBTQ comments by co-workers. Almost half, 47%, fear being “out” at work could pose a negative impact on their career.

If employers haven’t already enacted policies that prohibit harassment on the basis of sexual orientation and/or gender identity, today’s ruling will make it imperative to do so immediately.

In addition to policies that impact hiring, harassment in the form of insults, verbal or physical assaults, exclusions, and shunning are considered violations under the law.

Employers should act quickly to update company policies to clarify their non-discrimination and non-harassment guidelines to include members of the LGBTQ community. Updated policies should be distributed immediately to all staff members and managers to reinforce the organization’s commitment to a fair, inclusive, and welcoming workplace.

Protection without legislation

Many employers have adopted non-discrimination policies on behalf of LBGTQ workers and job seekers. These policies reflect the majority of beliefs of the American public. The same Glassdoor survey found 70% of members of the LGBTQ community would not apply to a company that does not support its LGBTQ employees — almost half of all Americans agree.

But more can be done. Nearly 79% of LGBTQ employees surveyed believe their employer can do more to support the community and become allies to workers on their staff. Overall, half of workers, LGBTQ and non-LGBTQ staffers agree.

The dissenting opinions

In dissenting opinions, Justices Samuel Alito, Clarence Thomas, and Brett Kavanaugh argued the Supreme Court was not the venue to make the change. Alito wrote, “There is only one word for what the Court has done today: legislation.”

All 3 stressed it was the job of Congress or the president to amend Title VII, not the role of the courts.