In a landmark statement by Judge Neil Gorsuch, the U.S. Supreme Court ruled that the prohibition of gender discrimination in Title VII applies to both sexual orientation and gender identity.
The story of Title VII
Title VII of the Civil Rights Act of 1964 is the federal law that prohibits discrimination in the workplace based on race, skin color, religion, national origin and gender. So far it was unclear whether “gender” under Title VII encompasses sexual orientation and gender identity or not. While sex has traditionally been defined as characterizing a person as male or female, sexual orientation generally concerns physical attraction and gender identity is based on social characteristics. In its comprehensive ruling, the Supreme Court held that although gender can be distinguished from sexual orientation and gender identity, the three concepts are inextricably linked. Therefore, for the purposes of Title VII, “gender” must necessarily include sexual orientation and gender identity.
Before the Court's judgment, discrimination against LGBTQ in the workplace was legal in most parts of the country. Less than 50% of states have laws that explicitly prohibit discrimination in the workplace based on gender identity and / or sexual orientation.
The consolidated cases
The Court's opinion is the result of three consolidated cases of discrimination at work:
- Bostock v Clayton County: Gerald Bostock, a child welfare coordinator in Clayton County, Georgia, was fired for "inappropriate behavior" after the county learned of his participation in a gay softball league.
- Altitude Express, Inc. v Zarda: Donald Zarda, a New York skydiver, was fired after his employer received a complaint that he informed a customer during a jump that he was gay.
- G. & G.R. Harris Funeral Homes, Inc. v. EEOC: Aimee Stephens, a transgender undertaker in Michigan, was released after telling her boss about her transition plans.
All three workers filed suit, alleging that their employers had illegally fired them for protection status – gender – in violation of Title VII. Employers argued that workers were not protected by Title VII and that the term "sex" under the law only covered discrimination based on the status of a worker as a man or woman. The eleventh circle decided that Title VII did not prohibit employers from dismissing workers for being gay, and Mr Bostock's action was subsequently dismissed. However, the second and sixth circuits allowed the claims of Mr. Zarda and Mrs. Stephens to continue. The US Supreme Court concluded with 6-3 votes that Title VII prohibits discrimination against LGBTQ employees.
The employers claimed that it should make a difference that the plaintiffs likely replied in the interview that they had been fired for being gay or transgender, not sex. The Court disagreed with the finding that "conversation conventions do not control the legal analysis of Title VII, which only asks whether sex is a reason that is only for an important reason". The Court also found that it is not a defense to insist that deliberate discrimination based on homosexuality or transgender status is not deliberate discrimination based on sex. According to the Court, "an employer who discriminates against homosexual or transgender workers necessarily and deliberately applies gender-specific rules."
This is a crucial decision and a great victory for the LGBTQ community and equality. Employers should review all of their policies and practices to ensure full compliance with the judgment.