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Title VII prohibits discrimination against LGBTQ employees, Supreme Court rules: Key Takeaways for Employers
By Amy Blaisdell, Jill Luft, Scott Cruz on June 17, 2020 at 2:00 PM

Firing an employee for being gay (i.e. sexual orientation) or transgender (i.e. gender identity) is a violation of Title VII of the Civil Rights Act of 1964, the U.S. Supreme Court said in a ruling issued June 15, 2020.

The Decision

The decision, which marks an important shift for employers, was highly anticipated and came as a result of a split among federal courts on the issue. Specifically, it addresses the question of how far Title VII’s prohibition on discrimination “because of sex” extends.

In the majority opinion, Justice Neil Gorsuch wrote, “An employer who fires an individual merely for being gay or transgender defies the law.” The court’s ruling came on a 6-3 vote.

The decision stems from cases in which gay employees alleged they were fired because of their sexual orientation and a transgender employee alleged she was fired based on her gender identity. It confirms that LGBTQ employees’ discrimination claims should be treated the same as Title VII’s other explicit prohibition against employment-related decisions based on, for example, an individual’s race, religion, national origin or sex. To read more about the previous circuit split on this issue, please see our previous blog post.

Highlighting the Rights of Individuals

The majority opinion highlights the rights of an individual, rather than groups, noting that Title VII “works to protect individuals of both sexes from discrimination, and does so equally” and provides the following example:

So, an employer who fires a woman, Hannah, be­cause she is insufficiently feminine and also fires a man, Bob, for being insufficiently masculine may treat men and women as groups more or less equally. But in both cases the employer fires an individual in part because of sex. In­stead of avoiding Title VII exposure, this employer doubles it.

Intersection with Free Exercise of Religion

The majority decision also opined that the protection of the free exercise of religion under the First Amendment and the Religious Freedom and Restoration Act (RFRA), 42 U.S.C. §2000bb et seq. may override the protections provided by Title VII in certain cases. Specifically, Judge Gorsuch wrote:

We are also deeply concerned with preserving the promise of the free exercise of religion enshrined in our Constitution; that guarantee lies at the heart of our pluralistic society. But worries about how Title VII may intersect with religious liberties are nothing new; they even predate the statute’s passage. As a result of its deliberations in adopting the law, Congress included an express statutory exception for religious organizations. §2000e-1(a). This Court has also recognized that the First Amendment can bar the application of employment discrimination laws “to claims concerning the employment relationship between a religious institution and its ministers.” Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 565 U.S. 171, 188 (2012). And Congress has gone a step further yet in the Religious Freedom and Restoration Act of 1993 (RFRA…That statute prohibits the federal government from substantially burdening person’s exercise of religion unless it demonstrates that doing so both furthers a compelling governmental interest and represents the least restrictive means of furthering that interest. §2000bb-1. Because RFRA operates as a kind of super statute, displacing the normal operation of other federal laws, it might supersede Title VII’s commands in appropriate cases.

Judge Gorsuch concluded by noting, “how these doctrines protecting religious liberties interact with Title VII are questions for future cases too…none of the employers before us today represent in this Court that compliance with Title VII will infringe their own religious liberties in any way.”

Key Takeaways for Employers

In light of this ruling, most employers will want to consider reviewing their anti-discrimination policies in their employee handbooks to determine if updates are necessary.

Employers should also provide training for management and employees regarding their anti-discrimination and anti-harassment policies.

Several state and local jurisdictions (e.g. Illinois, under the Illinois Human Rights Act) had already provided protection against discrimination and harassment based on an employee’s sexual orientation, but state or local EEO laws in many other jurisdictions have not have previously addressed these issues.

If you have questions about how the Supreme Court’s recent ruling applies to your organization, please contact an attorney in our Employment & Labor practice group.

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