ARTICLE
25 June 2020

Supreme Court Holds Employment Discrimination Based On Sexual Orientation And Gender Identity Constitute Sex Discrimination Under Title VII

KL
Herbert Smith Freehills Kramer LLP

Contributor

Herbert Smith Freehills Kramer is a world-leading global law firm, where our ambition is to help you achieve your goals. Exceptional client service and the pursuit of excellence are at our core. We invest in and care about our client relationships, which is why so many are longstanding. We enjoy breaking new ground, as we have for over 170 years. As a fully integrated transatlantic and transpacific firm, we are where you need us to be. Our footprint is extensive and committed across the world’s largest markets, key financial centres and major growth hubs. At our best tackling complexity and navigating change, we work alongside you on demanding litigation, exacting regulatory work and complex public and private market transactions. We are recognised as leading in these areas. We are immersed in the sectors and challenges that impact you. We are recognised as standing apart in energy, infrastructure and resources. And we’re focused on areas of growth that affect every business across the world.
On June 15, the United States Supreme Court ruled that Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating against employees based on sexual orientation and gender identity.
United States Employment and HR

On June 15, the United States Supreme Court ruled that Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating against employees based on sexual orientation and gender identity. Although state and local laws already provided causes of action based on sexual orientation and gender identity to employees in certain jurisdictions, the Court's decision extends these protections across the United States and provides all such individuals with a federal cause of action.

In addressing the question of whether sexual orientation and gender identity discrimination constitute sex-based discrimination under Title VII, the Court consolidated three cases with similar fact patterns. R.G. & G.R Harris Funeral Homes, Inc. v. Equal Employment Opportunity Commission out of the Sixth Circuit concerned a termination based on an employee's transgender status, and a circuit split between the Eleventh and Second Circuits addressed terminations of a child welfare advocate (Bostock v. Clayton County, Georgia) and a skydiving instructor (Altitude Express, Inc. v. Zarda) because they were gay. In a 6-3 decision (with Justices Alito, Kavanaugh and Thomas dissenting), the Court held that the scope of Title VII's prohibition against sex-based discrimination necessarily includes discrimination based on an employee's sexual orientation or transgender status. Writing for the majority, Justice Gorsuch explained that "[a]n employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex," and thus "[s]ex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids." The Court further clarified that even if multiple factors contributed to the challenged employment decision, as "long as the plaintiff's sex was one but-for cause of that decision, that is enough to trigger the law."

Although this landmark decision has national implications, New York State and City law already extended protection against discrimination to employees based on sexual orientation and gender identity. New York State has prohibited sexual orientation discrimination in employment since 2003 through the Sexual Orientation Non-Discrimination Act. Additionally, New York State added "gender identity or expression" as a protected class under the New York State Human Rights Law in 2019 through the Gender Expression Non-Discrimination Act (GENDA). Employees in New York City received protection under the New York City Human Rights Law based on sexual orientation in 1986 and gender identity in 2002.

Employers should ensure that anti-discrimination policies and training materials reflect that sexual orientation and gender identity are protected characteristics under the law. For questions about the United States Supreme Court's decision or guidance in modifying anti-discrimination policies or training materials, please contact a member of Kramer Levin's Employment Department.

Originally published June 23, 2020.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Mondaq uses cookies on this website. By using our website you agree to our use of cookies as set out in our Privacy Policy.

Learn More