| Insights | Authored Article

SCOTUS Rules on LGBTQ+ Employment Discrimination

In a victory for LGBTQ+ rights, the United States Supreme Court, in a 6-3 decision authored by Justice Gorsuch, held employers are prohibited under Title VII from terminating employees simply because they are homosexual or transgender.  Donald Zarada, Aimee Stephens, and Gerald Bostock, in separate suits originating respectively in the Second, Third, and Eleventh Circuits, alleged their terminations constituted sex discrimination in violation of Title VII of the Civil Rights Act of 1964. Each employer admitted the termination stemmed from the employee being homosexual or transgender, instead, arguing such status does not garner Title VII protections. 

The Court disagreed holding that an employer who fires an individual for being gay or transgender violates Title VII. Simply put, the Court found but-for the employees’ sex, termination would not have occurred. Although Title VII does not explicitly list sexual orientation or transgender status as a protected characteristic and it is unlikely the drafters expected the term “sex” to grant such protections, the Court applied the broad interpretation rule to implicate protections for the gay and transgender community becuase “homosexuality and transgender status are inextricably bound up with sex.”

However, the Court makes clear it is not the trait or action of the employees – i.e. attraction to the same sex or identification as a different gender than what the employee was identified at birth – that grants the protection here; it is the differing treatment of employees based on whether they are male or female. For example, if an employer has two employees - one female and one male - that are both attracted to men and the employer terminates the male at least in part for being attracted to men, then the employer has violated Title VII as the male employee was treated differently for traits or actions (i.e. attraction to men) that are tolerated when exhibited by his female colleague. Similarly, if an employer has two employees – one who was identified at birth as male but now identifies as female and one who was identified at birth as a female and identifies as a female - and the employer terminates the first employee, then the employer has violated Title VII as the first employee, who is a biological male, has been treated differently for traits or actions (i.e. identification as a female) that are tolerated when exhibited by the second employee, who is a biological female. 

Relying on precedent, the Court rebuked the employers’ arguments by finding employers cannot escape liability by describing the discriminatory practice with a non-discriminatory label, arguing the employee’s sex was not the primary or sole reason for the adverse action, or demonstrating all male and female homosexual or transgender employees are subject to the same rule. 

Employers should remain cognizant of this decision’s impact on other federal and state laws that prohibit sex discrimination or other issues under Title VII including dress code or sex-segregated bathrooms and on the intersect of Title VII and religious liberties. The Court’s holding here did not address these issues but noted that these laws and issues were not before the Court, were not subject to adversarial testing as to the meaning of their terms, and were not to be prejudged.