Supreme Court Update

While many of us were focused on COVID-19 over the summer, the United States Supreme Court issued three major decisions affecting the workplace.  Here is what you need to know.

LGBTQ Protections

The Supreme Court issued a 6-3 opinion in which the Court extended Title VII’s anti-discrimination protections to LGBTQ workers.  The majority decided the case on a very simple basis – Title VII prohibits discrimination against LGBTQ 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.

For now, 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.

Ministerial Exception to Title VII

In a 7-2 opinion, the Supreme Court clarified the ministerial exception to Title VII discrimination claims.  Before we get to the decision, it’s important to understand what the ministerial exception is.  While Title VII prohibits most employers from discriminating against individuals based on a protected category delineated under the law, the ministerial exception has historically provided that religious institutions are exempt from the law when it comes to their ministers/clergy.  What has not always been clear, though, is (a) what aspects of Title VII protection are eligible for the exception and (b) what constitutes a minister.

In this case, the Supreme Court held that there is no rigid test for determining when an employee of a religious institution is a minister for purposes of the exception.  In the particular case the Court addressed, the teachers were hired to teach and carry out the religious missions of the schools and, thus, they were considered ministers for purposes of the exception.  The Court confirmed that title does not matter but rather what the employee actually does.

Affordable Care Act Contraception

In another 7-2 opinion, the Supreme Court held that companies that have objections to the mandatory contraceptive provisions of the Affordable Care Act (ACA) based on sincerely held religious beliefs or sincerely held moral objections have the right to be exempted from those contraceptive provisions.  This case was decided much like the previously decided Hobby Lobby case from a few years ago.

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