The U.S. Supreme Court’s 6-3 decision prohibiting discrimination based on sexual orientation and gender identity is being hailed as a landmark ruling. But for many employers, it just formalizes the policies and practices they were already using, according to attorneys who focus on employment matters.
On June 15, the Court ruled that the language of Title VII of the Civil Rights Act of 1964, which covers employers with at least 15 employees, is broad enough that the law’s prohibition of discrimination based on sex includes sexual orientation and gender identity. The federal appeals courts had split on the issue.
Justice Neil Gorsuch wrote the majority opinion. He was joined by Chief Justice John Roberts and Justices Stephen Breyer, Ruth Bader Ginsburg, Elena Kagan, and Sonia Sotomayor. Justices Samuel Alito, Brett Kavanaugh, and Clarence Thomas dissented.
Impact of Ruling
“I think it’s historic in terms of civil rights laws . . . but the practical effect might not be,” says Jonathan R. Mook, an attorney with DiMuroGinsberg P.C. in Alexandria, Virginia. During the Obama administration, the Equal Employment Opportunity Commission and other agencies had adopted the interpretation included in the new decision. Although the climate changed with the Trump administration, many employers kept their internal policies prohibiting such discrimination.
“I don’t think this is going to affect many employers generally in terms of their practices or policies,” Mook says. Although it’s an expansion of the law and potentially could increase employer liability, it follows increasingly common employer policies. Employers already following the new interpretation won’t need to do anything different, according to Mook.
Angelo D. Catalano, an attorney with Coughlin & Gerhart LLP in Binghamton, New York, also says many employers won’t need to change policy. For example, employers in his state were already covered under a ruling from the U.S. 2nd Circuit Court of Appeals—which covers Connecticut, New York, and Vermont—that prohibited discrimination based on sexual orientation and gender identity. In addition, he points out that many states, including New York, also have laws prohibiting such discrimination.
Mook points out that the late Justice Antonin Scalia authored an opinion years ago that adopted a broad definition of the word “sex.” So the Supreme Court already had recognized same-sex harassment in another case. The new ruling is “not that far a stretch in terms of the basic language of the statute,” Mook says.
Over the years, debate has centered on how broad the definition of sex should be and whether the intent of Congress should be considered. The parties in the new case concede sexual orientation and gender identity were not part of the debate over the 1964 law. But Mook says Gorsuch’s opinion centers on “the language of the statute, not what might have been in the minds of Congress over 50 years ago.”
Action Items
Adriana Figueroa, an attorney with Faegre Drinker in Indianapolis, Indiana, says employers should review and update their employment policies to make sure they are inclusive. “For instance, employers may want to add sexual orientation and gender identity in their equal employment opportunity, antiharassment, and other policies,” she says.
Teresa L. Shulda, an attorney with Foulston Siefkin LLP in Wichita, Kansas, also advises employers to make sure their discrimination and harassment policies are broad enough to include LGBTQ employees. She says employers also should update their training materials “to ensure employees understand that discrimination on the basis of sexual orientation and transgender status is prohibited and will not be tolerated.”
Shulda adds that many businesses already have such policies, “but this decision is a good reminder to double-check those policies and training materials to ensure they are up to date with the law.”
Possible Limits
Kendall Hoechst, an attorney with Dinse P.C. in Burlington, Vermont, says the ruling is “a strong signal” that any discrimination based on sexual orientation or gender identity is unlawful under Title VII, but “the Court left open the possibility that other policies and practices might not qualify as unlawful discrimination under Title VII.”
For example, the Court made it clear it was not addressing such areas as bathrooms and locker rooms. Also, the Court left open the possibility that an employer relying on a religious justification “could be a different question.”
“The most important takeaway is that it is unlawful under Title VII to terminate an employee because that employee is homosexual or transgender,” Hoechst says. “Other policies that treat a homosexual or transgender person differently, or particularly worse, should be carefully examined and revised.”
Shulda also notes that the Court left open the issue of how the ministerial exception would apply to religious institutions and whether and how a Religious Freedom Restoration Act defense might be applied. “The Court specifically noted that those are questions left for future cases,” she says.
Background on 6-3 Ruling
In considering the issue, the Court consolidated three cases filed by employees who had been fired either for their sexual orientation or gender identity.
- Bostock v. Clayton County is a Georgia case in which a county employee was fired after he joined a gay softball league.
- Altitude Express, Inc., et al. v. Zarda is a case in which a skydiving instructor was fired after telling a customer he is gay.
- R.G. and G.R. Harris Funeral Homes v. EEOC concerns an employee who presented as male when first employed but then announced that she planned “to live and work full-time as a woman” and was then fired.
Mook says the 6-3 ruling, as opposed to the 5-4 rulings that have been issued in other cases, “helps in solidifying” that the new ruling is the opinion of the Court and “not a reflection of an ideological battle.”
In the decision, Mook says he sees Roberts exercising his role as chief justice and trying “to maybe keep the Supreme Court—to the extent that he can—out of the almost vitriolic politics and cultural wars we’re now in.”
The 6-3 decision, rather than a 5-4 decision, may help “preserve the authority of the Court independent of the various labels that may be put on the justices,” Mook says.
Tammy Binford writes and edits news alerts and newsletter articles on labor and employment law topics for BLR web and print publications.