On June 15, 2020, the U.S. Supreme Court issued a 6-3 opinion in which the Court extended Title VII’s anti-discrimination protections to LGBT workers. Justice Gorsuch authored the majority opinion and was joined by Chief Justice Roberts and Justices Ginsburg, Breyer, Sotomayor, and Kagan. The majority decided the case on a very simple basis – Title VII prohibits discrimination against LGBT workers because such discrimination is discrimination based on sex. The relevant language from Justice Gorsuch’s opinion below explains:
“An individual’s homosexuality or transgender status is not relevant to employment decisions. That’s because it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex. Consider, for example, an employer with two employees, both of whom are attracted to men. The two individuals are, to the employer’s mind, materially identical in all respects, except that one is a man and the other a woman. If the employer fires the male employee for no reason other than the fact he is attracted to men, the employer discriminates against him for traits or actions it tolerates in his female colleague.
Or take an employer who fires a transgender person who was identified as a male at birth but who now identifies as a female. If the employer retains an otherwise identical employee who was identified as female at birth, the employer intentionally penalizes a person identified as male at birth for traits or actions that it tolerates in an employee identified as female at birth. Again, the individual employee’s sex plays an unmistakable and impermissible role in the discharge decision.”
In the majority opinion, Justice Gorsuch raised the prospect that religious institutions or companies seeking to exercise religious rights might challenge application of this decision. This would be akin to Hobby Lobby’s previous challenge to the birth control aspects of the Affordable Care Act. Justice Gorsuch noted, however, that such a challenge is a separate matter and a separate case and was not before the Court in this decision. So, stay tuned because we could see additional court action on this issue much further down the road.
What Employers Should Do Now
First and foremost, if your workplace policies and employee handbook do not already prohibit discrimination based on sexual orientation, transgender status, or gender identity, you should immediately update your policies. In addition, you should implement training in the workplace to ensure that all employees know and understand that discrimination based on these protected categories is illegal and prohibited.
