By Peter M Langdon

On June 15, 2020, the Supreme Court issued its opinion in three cases it was considering that asked whether or not Title VII of the Civil Rights Act of 1964, which prohibits discrimination in employment on the basis of sex, also protects LGBTQ+ people. Generally, Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating against individuals “because of such individual’s race, color, religion, sex, or national origin.”  Before the Supreme Court’s recent ruling, lower courts and certain states expressed differing views on whether the prohibition against discrimination based on sex protected homosexual and transgender employees.  The Supreme Court’s decision, affirming that LGBTQ+ people ARE protected, resolved this issue.

The Court interpreted the word “sex” as the biological distinction between male and female.  In its analysis, the Court found that sex plays a necessary and undisguisable role in the decision to treat an individual differently for being homosexual or transgender.  The Court explained that discrimination on the basis of homosexuality or transgender status requires an employer to intentionally treat individual employees differently because of their sex.  Therefore, the Court held that it is impossible to discriminate against an employee for being homosexual or transgender without discriminating against that employee based on sex.  As a result, an employer who discriminates against an employee for being homosexual or transgender violates Title VII.

The Court provided representative examples in its opinion to illustrate its point.  For example, assume an employer has two employees, both of whom are attracted to men.  The two individuals are materially identical in all respects, except that one is a man and the other a woman.  If the employer fires the male employee for no reason other than the fact he is attracted to men, the employer discriminates against him for traits or actions it tolerates in its female colleague, which is impermissible discrimination on the basis of sex.  Similarly, the Court considered an employer who fires a transgender person who identified as a male at birth but now identifies as a female.  If the employer retains an otherwise identical employee who identified as female at birth, the employer intentionally penalizes a person identified as male at birth for traits or actions that it tolerates in an employee identified as female at birth.  Again, to discriminate on this ground requires the employer to intentionally treat the individual employee differently because of an employee’s sex.

As a result of this decision, employers should review their policies and handbook to ensure that gender identity and sexual orientation are considered protected classes.  Employers should ensure that policies and practices are implemented and enforced in compliance with the Supreme Court’s recent ruling.  Additionally, employers should consider providing updated training to discuss these issues with employees and reinforce harassment and discrimination policies.

For more information regarding the Supreme Court’s recent decision, or for questions related to Title VII and workplace policies, contact Peter M. Langdon at plangdon@akclaw.com or Harvey B. Cooper at hcooper@akclaw.com.