In a landmark decision, the U.S. Supreme Court ruled today that the prohibition on employment discrimination “because of sex” in Title VII of the Civil Rights Act extends to discrimination against gay and transgender individuals. The decision – authored by Trump-appointee Justice Neil Gorsuch and joined by Chief Justice Roberts as well as Justices Ginsburg, Kagan, Sotomayor, and Breyer – will extend employment protections to millions of American workers
The decision actually involved three separate cases considered collectively by the Court. In each such case, the claimant alleged that their employment was terminated simply because of their homosexuality or transgender status. The Court conceded that at the time Title VII was written in 1964 the term “sex” referred only to “status as either male or female [as] determined by reproductive biology,” but did not shy away from the bigger picture, stating “the question isn’t just what “sex” meant, but what Title VII says about it.”
Discrimination “Because of Sex”
Title VII prohibits discrimination “because of sex,” meaning that an employer violates the Act when it makes an employment decision on this basis. This led the Court to a “simple and momentous” statement: “[I]t is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.” The Court provided the example of two employees who are both attracted to men, but one is a man and one is a woman. If the employer fires the male employee for no other reason aside from the fact that he is attracted to men, “the employer discriminates against him for traits or actions it tolerates in his female colleague.” In the transgender context, if the employer fires a transgender employee who was identified as male at birth but now identifies as female yet retains an identical employee who was identified as female at birth the “employer intentionally penalizes a person identified as male at birth for traits or actions that it tolerates in a person identified as female at birth.” This violates Title VII as the “employee’s sex plays an unmistakable and impermissible role” in the employment decision.
The employers argued that discrimination on the basis of homosexuality or transgender status is not truly discrimination “because of sex” as people typically conceive of the issue. The Court rejected this position, stating that under the Title VII “but-for” causation test, sex is the underlying factor involved in discrimination against homosexual and transgender individuals, and is therefore prohibited.
It Doesn’t Matter What the Employers Thinks They Are Doing
The employers also argued that discrimination based on homosexuality or transgender status is not intentional discrimination on the basis of sex. The Court rejected this argument as well, stating that such discrimination “necessarily and intentionally applies sex-based rules” by penalizing male employees for being attracted to men, for example. Just because employers “don’t perceive themselves as motivated by a desire to discriminate based on sex” does not mean that they are not violating Title VII when they discriminate against employees based on homosexuality or transgender status. The Court offered the following example:
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 a manager 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 that individual’s sex.
Finally, the employers also argued to no avail that Title VII does not specifically call out sexual orientation or transgender status as protected characteristics. While acknowledging that sexual orientation and transgender status are not the same as sex, the decision states that “discrimination based on homosexuality or transgender status necessarily entails discrimination based on sex; the first cannot happen without the other.”
Bottom Line
This decision does not have the impact in Minnesota that it does in most other states since our state’s Human Rights Act already bans discrimination on the basis of sexual orientation. Nevertheless, it is revolutionary in that it truly makes a prohibition against employment discrimination against any member of the LGBTQ community the law of the land in the United States.