TAtech Update: The following article appeared in OFCCP Week in Review: June 15, 2020 from DirectEmployers Association. The finding is particularly important for online publishers given the 2019 judgment by the EEOC that forced Facebook to make substantial changes to its advertising policies and procedures because it had allowed employers to post recruitment ads that discriminated by gender and race.
In a 6-3 ruling, the U.S. Supreme Court [on Monday] held that an employer which fires an individual merely for being gay or transgender violates Title VII of the Civil Rights Act of 1964. Today’s ruling thus extends federal protections to gay and transgender workers by prohibiting discrimination in employment on the basis of one’s sexual orientation and/or gender identity.
NOTE: The Court consolidated three cases in issuing its single decision as to all three cases: two cases pertained to workplace protections based on sexual orientation (i.e. gay and lesbian rights issue (Bostock v. Clatyon County, Georgia, Case No. 17-1618, and Altitude Express, Inc., et al. v. Zarda, et al., Case No. 17-1623), and one case pertained to employment rights based on gender identity (i.e. transgender protection issue) (R.G. & G.R. Harris Funeral Homes, Inc. v. Equal Employment Opportunity Commission, et al., Case No. 18-107).
Writing for the majority, Justice Neil Gorsuch, and joined by Chief Justice John Roberts, reasoned that because discrimination on the basis of homosexuality or transgender status requires an employer to intentionally treat individual employees differently because of their sex, an employer who intentionally penalizes an employee for being homosexual or transgender also violates Title VII. Rejecting arguments that homosexuality and transgender status are distinct concepts from sex, Justice Gorsuch identified legal precedent that expanded protections based on sex, such as being able to bear children (Phillips v. Martin Marietta Corp., 400 U.S. 542) and same sex sexual harassment (Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75), to assert that homosexuality and transgender status is based in part on one’s “sex,” and that discrimination in this regard “necessarily and intentionally applies sex-based rules.” Justice Gorsuch also relied on the Congressional intent to apply Title VII as broadly as possible in the context of prohibiting discrimination to support inclusion of LGBT protections, even if not explicitly stated or imagined at the time of Title VII’s passage.
In the two written dissents, one by Justice Samuel Alito (joined by Justice Clarence Thomas) and one by Justice Brett Kavanaugh, the dissenting justices did not object based on the goal sought in extending Title VII protections to LGBT employees, but rather that extending non-discrimination protections is appropriately the work of Congress and that the U.S. Supreme Court is an improper avenue by which to enact changes to legislation.
Today’s ruling by the U.S. Supreme Court cements federal protections that the Equal Employment Opportunity Commission (“EEOC”) under the Obama Administration advocated in 2015. Specifically, the EEOC, the federal agency tasked with enforcing Title VII, has held the position that gay and transgender applicants and employees were federally protected from unlawful discrimination, believing that treating a man who is attracted to men differently from a woman who is attracted to men (or vice versa) is unlawful discrimination. Likewise, OFCCP issued in 2016 a Final Sex Discrimination Rule making employment discrimination based on sexual orientation and gender identity unlawful pursuant to Executive Order 11246.
Today’s ruling makes into law the EEOC’s stated policy position, and provides federal protections in the 29 states that currently do not provide for gay and/or transgender protections under state law (21 states, the District of Columbia, and the U.S. territories of Puerto Rico and Guam already have statutes that protect against both sexual orientation and gender identity discrimination in employment in the public and private sectors). Moving forward, this will require employers not already subject to state law protections for sexual orientation and gender identity to update anti-discrimination and anti-harassment policies in their handbooks, and prohibits the consideration of a worker’s sexual orientation or gender identity in making employment decisions.