U.S. Supreme Court finds that workplace discrimination against LGBT employees is unlawful

Brian Jebb

On June 15, 2020, the United States Supreme Court ruled that the Civil Rights Act of 1964 prohibits workplace discrimination on the basis of sexual orientation and gender identity. The 6-to-3 opinion, penned by President Trump’s appointee Justice Neil Gorsuch, consolidates three cases which were argued last year: Bostock v. Clayton County, Georgia; Altitude Express v. Zarda; and G.R. Harris Funeral Homes v. Equal Employment Opportunity Commission and Stephens. In each case, an individual’s employment was terminated for either their sexual orientation or gender identity.

While several U.S. states and cities already prohibit such workplace discrimination, the decision expands protection for all LGBT employees across the United States. Until this decision, lower courts and various federal and state officials had taken different, and often conflicting, decisions pertaining to sex discrimination under Title VII of the 1964 Civil Rights Act. Significantly, the U.S. Equal Employment Opportunity Commission and U.S. Department of Justice have argued the opposite position, making the Court’s decision one of the most hotly debated issues in U.S. employment law.

Title VII protects employees from discrimination on the basis of sex, race, color, religion or national origin. The Supreme Court’s decision considered whether the enumerated category of “sex” included sexual orientation or gender identity. According to the Court, as long as sex is a factor in the employer’s discrimination, Title VII protections have been triggered. The Supreme Court reasoned that the concept of sex is inherent to sexual orientation or gender identity—by discriminating against a gay or transgender employee, the employer has made a decision based on its own ideas pertaining to “sex.”

Today’s decision clearly tells employers they are federally mandated to provide equal treatment to gay and transgender employees. Employers should consider their current employment policies, and ensure their policies include sexual orientation and gender identity in nondiscrimination and anti-harassment policies.