Jun. 23, 2020

The Supreme Court Speaks: What Employers Need to Know Moving Forward

As published in the Daily Business Review

The holding, authored by Republican-appointed Justice Neil Gorsuch, provides millions of additional employees with greater protections from discrimination and harassment in the workplace.

In a landmark ruling on June 15, the U.S. Supreme Court ruled that Title VII of Civil Rights Act of 1964 protects LGBTQ+ employees from workplace discrimination. In a 6-3 ruling, the high court found that Title VII extends to claims of discrimination based on an individual’s sexual orientation and gender identity. The holding, authored by Republican-appointed Justice Neil Gorsuch, provides millions of additional employees with greater protections from discrimination and harassment in the workplace.

The ruling is a consolidation of three separate cases argued before the Supreme Court in 2019: Bostock v. Clayton County, Georgia, No. 17-1618; Altitude Express Inc. v. Zarda, No. 17-1623; and R.G. & G.R. Harris Funeral Homes v. EEOC, No. 18-107.

The first two cases involve employees who allege they were discriminated against when terminated based on their sexual orientation, while the third involves an employee who alleges she was unlawfully terminated for being transgender.

Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan, held as follows: “We must decide whether an employer can fire someone simply for being homosexual or transgender. The answer is clear. An employer who fires an individual for being homosexual or transgender fires that person for traits or action 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.”

Gorsuch’s opinion focused on the plain language of Title VII, which makes it “unlawful … for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex or national origin.”

Notably absent from Title VII’s language is an explicit reference to either “sexual orientation” or “gender identity” as an enumerated category. Nevertheless, the Supreme Court held that because Title VII forbids employment discrimination on the basis of sex, it necessarily prohibits discrimination on the bases of sexual orientation and gender identity “because it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”

In a dissenting opinion, Justice Samuel Alito, joined by Justice Clarence Thomas, criticized the majority for violating the separation of powers—a doctrine of constitutional law referring to the division of government responsibilities into three distinct branches of government—by infringing upon the lawmaking duties afforded to the legislative branch.

In the words of Alito, “There is only one word for what the Court has done today: legislation.The document that the court releases is in the form of a judicial opinion interpreting a statute, but that is deceptive.” Alito also noted that numerous bills have been introduced to Congress over the past four decades that would specifically add “sexual orientation” and “gender identity” as enumerated categories under Title VII, but none have passed to date.

This ruling is significant for not only the LGBTQ community but also for employers who need to carefully navigate this expansion of Title VII when deciding whether to hire a prospective employee, or whether to fire, promote, demote, or discipline a current employee.

In general, Title VII applies to all employers with 15 or more employees.

Approximately one-half of the 50 states have already enacted civil rights laws affording protection to employees based on sexual orientation or gender identity.

Florida, however, is not one of them, though certain counties and municipalities throughout the state implemented local ordinances protecting members of the LGBTQ and transgender community. Additionally, some Florida employers have voluntarily elected to adopt policies prohibiting such discrimination, today’s ruling makes clear that it is no longer within an employer’s discretion to do so—it is now mandatory as it is the law of the land.

For those businesses whose policies fail to address discrimination on the basis of sexual orientation and gender identity, it is important that they take swift action including, but not limited to: revising their policies to ensure compliance with Title VII, educating their human resource professionals that sexual orientation and gender identity are now protected categories, and instituting a procedure for thoroughly investigating all complaints of LGBTQ+ discrimination.

This rule will also raise a host of issues regarding the workplace environment such as, for example, establishing policies regarding the use of bathrooms for members of the transgender community, dress codes, internal communications which include language and imagery that assumes that heterosexual families and relationships are the norm.

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