In a landmark decision for LGBTQ employment rights, the Supreme Court has ruled that Title VII of the Civil Rights Act of 1964, which prohibits discrimination on the basis of sex, includes gay and transgender employees.
The ruling, written by Justice Neil Gorsuch, settles differing decisions from lower courts that considered whether Title VII provided such protection. The act does not specifically address gender identification or sexual orientation, but the Court stated:
“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.”
As we noted last year when the Supreme Court agreed to consider the related cases, the outcome was difficult to predict, given the Court’s conservative majority. But two of those conservatives, Gorsuch and Chief Justice John G. Roberts Jr., joined their more liberal colleagues for this ruling — an indication that the Court intends to preserve its independence despite outside pressure to rule along party lines.
In the opinion, the Court also addressed what the decision does not affect: gender-segregated bathrooms, locker rooms, and dress codes, saying that it would “not prejudge any such questions today.” The Court also clarified that the ruling does not address the issue whether Title VII protections might require some employers to violate their religious convictions, since religious liberty claims were not a part of the cases under review. These issues, said the opinion, “are questions for future cases.”
For employers, the ramifications are far-reaching yet simple: employers may not base employment decisions on an employee’s sexual orientation and gender identification status.
To ensure that your company demonstrates compliance with the decision, review your written policies and employee handbooks to confirm that nondiscrimination language conforms with the Court’s decision. Add sexual orientation, transgender status, and gender identity to the protected categories if those classifications are not included already. Be sure that management understands that treating employees differently due to sexual orientation or gender identity is a violation of federal law.
Consult your employment attorney if you have any questions or concerns about compliance. As always, we are happy to help.