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Supreme Court Expands Title VII Protections To Include Gender Identity and Sexual Orientation

June 17, 2020

Back in October we highlighted that the Supreme Court would be hearing three cases (two of which are consolidated) to determine whether Title VII protections do extend to sexual orientation, gender identity and transgender status as protected classes.

 

On Monday June 15, the Supreme Court issued the decisions in these cases and clarified Title VII of the Civil Rights Act of 1964 prohibits employment discrimination on the basis of sexual orientation and transgender status.  

 

Federal law protects individuals from discrimination or harassment based on the following nine protected classes: sex, race, age, disability, color, creed, national origin, religion, or genetic information. Here the question was whether “sex” encompasses sexual orientation and transgender status.

 

The majority opinion stated "An 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. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”

 

In the case of terminating an employee because of that persons' homosexuality, changing the employee’s sex would have yielded a different choice by the employer and therefore creates a situation whereby that employee is being treated differently because of sex.   With two employees who are both attracted to men and are, otherwise, identical, but one is male and one is female, if the employer fires the male employee because he is attracted to men, while keeping the female employee, then the employer has violated Title VII. This discrimination “necessarily entails discrimination based on sex; the first cannot happen without the second.”

 

Additionally, an individual’s sex does not have to be the sole cause of the adverse action. The employer still violates Title VII if it intentionally relies in part on the individual’s sex when making the decision, reasoning that discrimination on the basis of sexual orientation or transgender status requires the employer to intentionally treat the individual differently because of his or her sex, and therefore the employer is violating the law.

 

Several arguments were not before the court and were not decided.  This means there is now room for additional sexual orientation cases, including transgender access to bathrooms and locker rooms to be decided.

 

Massachusetts law already prohibits discrimination on these bases, however by now affirmatively including sexual orientation and gender identity within the meaning of Title VII, employers now have liability at the Federal level.  Employers should review their harassment and discrimination policies to include these protections.

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