“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.

Those who adopted the Civil Rights Act might not have anticipated their work would lead to this particular result. Likely they weren’t thinking about many of the Act’s consequences that have become apparent over the years, including its prohibition against discrimination on the basis of motherhood or its ban on the sexual harassment of male employees. But the limits of the drafters’ imagination supply no reason to ignore the law’s demands.…Only the written word is the law, and all persons are entitled to its benefit.”

– Justice Neil Gorsuch, June 15, 2020.

Supreme Court Rules Discrimination On the Basis of Sex Includes Sexual Orientation and Gender Identity

In a landmark decision, the United States Supreme Court held yesterday (6-3) that employers who fire employees because they are homosexual or transgender violate Title VII of the Civil Rights Act of 1964.

Justice Gorsuch wrote the opinion of the Court, joined by Chief Justice Roberts, Justice Ginsburg, Justice Breyer, Justice Sotomayor, and Justice Kagan. As we advised in previous articles, the Court agreed to hear three cases presenting these issues, and oral arguments were heard in the fall. The Court decided all three cases in a single written opinion.

Title VII is the federal law which prohibits employers from discriminating against employees or applicants because of certain protected characteristics, including their race, color, religion, national origin, and sex. The only protected characteristic at issue here was sex. Each of the employers conceded they fired their respective employees (at least in part) because they were homosexual or transgender. Their arguments were simply that such action did not violate Title VII because sexual orientation or transgender status were not protected characteristics under the definition of “sex.” The primary question before the Court was what “sex” meant under Title VII.

Sexual orientation and transgender status are encompassed in the definition of “sex.”

The Supreme Court acknowledged that homosexuality and transgender status “are distinct concepts from sex. But…discrimination based on homosexuality or transgender status necessarily entails discrimination based on sex; the first cannot happen without the second.” The same is true of sexual harassment: it is conceptually distinct from sex discrimination, but it has long been recognized to fall within Title VII’s protections. The Court continued, “as enacted, Title VII prohibits all forms of discrimination because of sex, however they may manifest themselves or whatever labels might attach to them.” Congress adopted broad language in Title VII for a reason, and the Court’s holding falls within that sweeping mandate. To put it bluntly and conclusively, “an individual’s homosexuality or transgender status is not relevant to employment decisions [] because it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”

The Court’s well-reasoned opinion includes repeated efforts to provide comparative practical examples to further explain its conclusion. Consider two employees identical in all respects including that they are both attracted to men, except one of them is a woman and one of them is a man. If the employer fires the male employee in any part because he is attracted to men, then the employer has discriminated against him for traits or actions it tolerates in the female colleague. “The individual employee’s sex plays an unmistakable and impermissible role in the discharge decision.” The same is true for a transgender employee who was identified as male at birth but now identifies as female when the employer retains an otherwise identical employee who was identified as female at birth. Both are inextricably intertwined with the individual employee’s sex. “Any way you slice it, the employer intentionally refuses to hire applicants in part because of the affected individual’s sex.”

The employee’s sex doesn’t have to be the only motivation.

Based upon the robust body of case law interpreting Title VII, the Court reminded that by no means does the employee’s sex have to be the only basis (or even the primary motivation) for the employer’s decision. It repeatedly stated that an employer violates Title VII when it intentionally fires an individual based even in part on sex; “it doesn’t matter if other factors besides the [employee]’s sex contributed to the decision.” Citing a previous case in which the employer refused to hire young women with children but hired men with children the same age, the Court pointed out that the discrimination “depended not only on the employee’s sex as a female but also on the presence of another criterion—namely, being a parent of young children.” It was still sex-based discrimination. Sex doesn’t have to be “the only factor, or maybe even the main factor, but it was one but-for cause—and that was enough.”

Another example from the Court’s opinion: an employer fires any woman it discovers to be a Yankees fan. (As a Philadelphia Eagles supporter myself, I would have used the New York Giants—or worse, the Dallas Cowboys). In this case, the fired employee must be both a female and a Yankees fan; she wouldn’t have been fired if she was one without the other, so clearly her sex is not the only motivation. But the employer still would have intentionally discriminated against her because of sex if it retained male employee Yankee fans. The same is true as it relates to employees who are homosexual or transgender. As the Court explained, “two causal factors may be in play—both the individual’s sex and something else (the sex to which the individual is attracted or with which the individual identifies). But Title VII doesn’t care. If an employer would not have discharged an employee but for that individual’s sex, the statute’s causation standard is met and liability may attach.”

It is still discrimination even if employers treat men and women, as groups, equally poorly.

By their own admission, the employers fired the employees at issue because they were homosexual or transgender—not because they were men or women. In that sense, the employers argued they would have treated men as a group and women as a group in the same way, so they couldn’t possibly have discriminated because of the employees’ respective sex. But that argument was rejected. As the Supreme Court explained, “it doesn’t matter if the employer treated women as a group the same when compared to men as a group. If the employer intentionally relies in part on the individual employee’s sex when deciding to discharge the employee—put differently, if changing the employee’s sex would have yielded a different choice by the employer—a statutory violation has occurred.” Title VII works to protect individuals of both sexes from discrimination, so an employer who fires a woman because she is insufficiently feminine and also fires a man for being insufficiently masculine more or less treats men and women as groups equally, but in both cases the employer still fires the individual employee in part because of sex.

One more example from the Court to drive the point home:

“Imagine an employer who has a policy of firing any employee known to be homosexual. The employer hosts an office holiday party and invites employees to bring their spouses. A model employee arrives and introduces the boss to Susan, the employee’s wife. Will that employee be fired? If the policy works as the employer intends, the answer depends entirely on whether the model employee is a man or a woman. To be sure, that employer’s ultimate goal might be to discriminate on the basis of sexual orientation. But to achieve that purpose the employer must, along the way, intentionally treat an employee worse based in part on the individual’s sex. An employer musters no better defense by responding that it is equally happy to fire male and female employees who are homosexual or transgender. Title VII liability is not limited to employers who, through the sum of all their employment actions, treat the class of men differently than the class of women. Instead, the law makes each instance of discriminating against an individual employee because of that individual’s sex an independent violation of Title VII.”

The Court summed it up in this way: “Title VII’s plain terms and our precedents don’t care if an employer treats men and women comparably as groups; an employer who fires both lesbians and gay men equally doesn’t diminish but doubles its liability.”

What are the practical take-aways for employers today?

• Obviously, the law of the land is now clear: employers cannot discriminate or make employment decisions on the basis of an employee’s sexual orientation or transgender status. There can be no mistake that such actions are encompassed within discrimination based on sex. Employers should consider these steps:
• Update employee handbooks and other policies and procedures to reflect this change, especially those relating to discrimination and harassment. Although the case dealt specifically with employees who were either homosexual or transgender, we advise more inclusive terms be used such as “sexual orientation” and “gender identity.” For example, an employee who identifies as bisexual would surely benefit from the reasoning of the Court’s opinion.
•  Although the Supreme Court’s decision concerned only existing employees, the law applies equally to applicants. Ensure your policies and procedures (including recruiting/onboarding practices, employment applications, and new hire paperwork) reflect that realization.
•  Employers should train their supervisors and human resources personnel. The goal of this training is simple: an applicant’s or employee’s sexual orientation or gender identity is not related to job qualifications or performance and should not be considered in making employment decisions of any kind. The amount of training required to communicate that or ensure its proper application will vary. To be sure, this ruling will be a departure for some; employers must make certain their decisionmakers are in compliance and safeguard their businesses from any unnecessary liability.
•  Title VII protects against discrimination in all terms, conditions, and privileges of employment – and is not just limited to hiring, firing, and other traditional employment decisions. As employers have faced claims for sexual harassment or permitting a sexually-hostile working environment, those claims will now include protections for harassment or hostile working environments based upon a person’s sexual orientation or gender identity. This should be addressed in any training you conduct.
•  Employers should revisit and check for gender parity in all other aspects of employment, including but not limited to the healthcare benefits they offer their employees. Health insurance which provides unequal coverage or benefits for employees (or their dependents) depending on their sexual orientation or transgender status would run afoul of Title VII’s protections.

Whether you were an employer who already extended some level of protections (which was required by about half of the states, not including Oklahoma) or whether you have been holding fast to earlier interpretations of the law, it is time to look closely at your policies, your practices, and your culture to ensure you comply with what is now undoubtedly the law of the land.

By Rebecca D. Bullard, rbullard@dsda.com