Today, the Supreme Court issued a landmark ruling in three separate cases establishing that Title VII prohibits employment discrimination against homosexual and transgender individuals. Title VII of the rainbowflag-300x199Civil Rights Act of 1964 is one of the primary federal laws that provides protections for employees. In Title VII, Congress outlawed workplace discrimination on the basis of race, color, religion, sex, and national origin.
When I first started practicing employment-law, there was no federal or North Carolina precedent to support pursuing a claim on behalf of a homosexual or transgender employee who suffered employment discrimination. I cannot count the number of times that I had to tell gay, lesbian, or transgender individuals who were subjected to discrimination in the workplace that there was no legal basis to support their claims. It was unfathomable and frustrating to repeatedly explain that discrimination against homosexual and transgender employees was entirely legal.
Over the years, cases were brought on behalf of homosexual and transgender individuals using novel legal arguments to support the assumption that such discrimination is “because of sex” and prohibited by Title VII. Historically, these arguments generally failed. But over time, successful claims appeared in certain scenarios, such as where individuals were discriminated against for failing to conform to traditional gender stereotypes and norms. For example, where an employer fires a woman because she is insufficiently feminine, or fires a man for being insufficiently masculine. In those specific circumstances, courts had concluded that the employer was firing an individual in part because of sex under Title VII. These cases opened the door to pursuing claims on behalf of a lesbian who was fired because she had short hair or wore “masculine” clothing such as a suit and a tie, or a man who was fired because he wore makeup or jewelry. However, that provided relief to only a limited number of homosexual and transgender employees.
Since 2015, the U.S. Equal Employment Opportunity Commission (EEOC) made it clear that it viewed Title VII’s sex discrimination protections as encompassing sexual orientation and gender identity. The EEOC actively pursued an end to such discrimination, particularly transgender individuals. Despite the EEOC’s recent actions, case law remained unsettled with respect to Title VII’s scope.
The Supreme Court’s ruling ends the legal debate forever and protects the LGBTQ community from losing their livelihood because of who they are or whom they love. The Court’s opinion was 6-3. Justice Neil Gorsuch wrote the opinion for the Court. Justice Alito (with whom Justice Thomas joined) and Justice Kavanaugh issued dissenting opinions.
Gorsuch wrote: “Today, we must decide whether an employer can fire someone simply for being homosexual or transgender. The answer is clear. 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,” he wrote, adding, “But the limits of the drafters’ imagination supply no reason to ignore the law’s demands.” He wrote, “Only the written word is the law, and all persons are entitled to its benefit.”
The Court’s opinions can be found here.
Jessica Leaven is an employment law attorney and partner at Grimes Teich Anderson LLP. To read more about Jessica and her practice, please click here: https://www.grimesandteich.com/jessica-e-leaven.html