Earlier today, the U.S. Supreme Court ruled that Title VII’s prohibition against sex discrimination bars job discrimination on the basis of sexual orientation or transgender status. In the long-awaited decision and by a vote of 6-3, the Court held, “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.”
Somewhat surprisingly, the decision, which rejected the Trump administration’s position that Title VII does not cover these individuals, was written by Justice Neil Gorsuch, a Trump appointee, and was joined by Chief Justice John Roberts and the four more liberal members of the Court. This decision also calls into question the rule issued by the Trump administration last week that lifted anti-discrimination protections for transgender people in healthcare, though having no immediate legal impact on the rule.
This decision is the result of several cases brought by gay and transgender employees alleging sex discrimination under Title VII after they were terminated based on their sexual orientation or transgender status. The Eleventh Circuit previously held that Title VII does not prohibit employers from terminating employees for being gay, which contradicted decisions from the Second and Sixth Circuits. The Supreme Court’s decision reverses the Eleventh Circuit’s previous ruling.
While the Court’s decision is a landmark one, practically speaking, it may not result in as widespread changes as expected, given that close to half of the states already have their own laws prohibiting job discrimination based on sexual orientation or gender identity and federal law already protected against sex stereotyping. Nevertheless, the Court’s decision finally answers the question employers across the country have struggled with over the last few decades and provides firm protection for LGBTQ individuals. As a result, we recommend that employers review their non-discrimination/EEO policies to make sure they include language prohibiting discrimination based on “sexual orientation, sexual identity, gender expression, and gender stereotyping” in addition to the other protected classes such as race and disability.
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