The Supreme Court of the United States Court, in a controlling 6-3 decision, recently determined that discriminating against someone on the basis of sexual orientation or transgender status constitutes impermissible discrimination “because of sex” under Title VII of the Civil Rights Act of 1964 (“Title VII”).
Background
The Supreme Court’s ruling was based on an analysis of three separate cases that were appealed from the Second Circuit Court of Appeals, Sixth Circuit Court of Appeals, and Eleventh Circuit Court of Appeals.
In the Second Circuit case, an employee worked as an instructor at a skydiving company for several seasons in New York. The employee mentioned that he was homosexual, and days after disclosing this, he was terminated from the company.
In the Sixth Circuit case, an employee worked at a funeral home. The employee began her job at the funeral home presenting as a man. After six years of working with the company, she wrote a letter to her employer stating that she planned to begin living and working as a woman full-time when she returned from vacation. The funeral home terminated the employee before she left for her vacation and told her that it was not going to work out.
In the Eleventh Circuit case, an employee worked for a municipality as a child welfare advocate. After a decade with the municipality, the employee began participating in a gay recreational sports league. Following this, influential members of the community allegedly began making derogatory comments about the employee’s sexual orientation and participation in the sports league. Soon after, the employee was terminated for conduct “unbecoming” of a municipal employee.
Each of these three employees brought suit under Title VII. The Second Circuit concluded that sexual orientation discrimination violates Title VII. The Sixth Circuit similarly held that employers terminating employees because of their transgender status violates Title VII. The Eleventh Circuit, however, held that the law does not prohibit employers from terminating employees for being homosexual. The Supreme Court granted certiorari to resolve the disagreement among the Courts of Appeals over the application of Title VII’s protections for homosexual and transgender persons.
The Supreme Court ultimately affirmed the Second and Sixth Circuit opinions and reversed the Eleventh Circuit opinion.
Supreme Court’s Decision
Generally, Title VII makes it “unlawful . . . for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e—2(a)(1). In finding that terminating someone because they are homosexual or transgender violates Title VII, the Court based its decision on the conclusion that a decision to terminate someone because of their sexual orientation or transgender status is an impermissibly discriminatory decision “because of sex” in violation of Title VII.
The Court illustrated how a decision based on an employee’s sexual orientation is “because of” that employee’s sex. The Court reasoned that if an employer relies on an individual’s sex when making the decision to discharge the employee, a violation of Title VII has occurred. To put it a different way, if changing the employee’s sex would change the decision to discharge, then a violation has occurred. The Court provided the example of an employer that has two employees that are both attracted to men. The two employees are materially the same in all respects, except that one is a man and one is a woman. The Court found that if the employer in the hypothetical were to terminate the male employee for no other reason than his attraction to men, then the employer has discriminated against him for traits or actions that it would tolerate from its female employees. The Court held that it would be a decision where an employee’s sex is a but-for cause of his discharge.
The Court followed this same reasoning to determine that a decision based on an employee’s transgender status is “because of” that employee’s sex. The Court provided the example of an employer who fires a transgender person who was identified as a male at birth, but now identifies as a woman. The Court found that if the employer in the hypothetical were to retain a materially identical employee that was identified as female at birth, then the employer has discriminated against the person identified as male at birth for traits or actions that it tolerates in employees identified as female at birth. As with the sexual orientation analysis, the Court held that this decision would be based on the employee’s sex, and that the affected employee’s sex is an impermissible but-for cause of the discharge.
The Court was careful to note that its decision in this case under Title VII does not address an employer’s bathrooms, locker rooms, or dress codes. The Court also noted that this decision does not address the intersection of Title VII with an employer’s religious liberties. Instead, the Court held that these are issues for future cases and that this present decision simply finds that terminating an employee because they are homosexual or transgender is impermissible discrimination “because of” sex in violation of Title VII.
Takeaway
This is a sweeping decision that sets controlling precedent for all federal courts across the country. While many employers may already have workplace protections and policies for LGBTQ+ applicants and employees, employers that do not will need to carefully update their policies to avoid any discrimination based on sexual orientation or transgender status. Also, while the Court’s opinion did not specifically address LGBTQ-related bathroom, locker room, and dress code issues, this decision will likely impact future lawsuits addressing these subjects. A strong dissenting opinion by Justice Alito joined by Justice Thomas, however, shows that these issues and more are far from over. Nevertheless, it is important for employers to formulate and implement policies to comply with this controlling interpretation of Title VII, and to help ensure against any possible unwarranted disputes or illegal discrimination.
R. Eddie Wayland is a partner with the law firm of King & Ballow. You may reach Mr. Wayland at (615) 726-5430 or at [email protected]. The foregoing materials, discussion and comments have been abridged from laws, court decisions, and administrative rulings and should not be construed as legal advice on specific situations or subjects.
