Yesterday, in a landmark 6-3 decision authored by Justice Gorsuch, the Supreme Court held that Title VII of the Civil Rights Act of 1964 prohibits employment discrimination against LGBT individuals, thus giving gay, lesbian, and transgender workers in many states new protections.
"An employer who fires an individual merely for being gay or transgender defies the law," Justice Neil M. Gorsuch wrote for the majority in the 6-to-3 ruling. Any adverse employment action on the basis of sexual orientation or gender identity is now prohibited under Title VII's protections against employment discrimination or harassment on the basis of sex.
The Court consolidated three employment termination cases for its consideration: two based on sexual orientation (Zarda v. Altitude Express) and (Bostock v. Clayton County) and one based on gender identity (R.G. & G.R. Funeral Homes v. EEOC). In each case, the employer made the employment termination decision because of the employees' sexual orientation or gender identity. The Court had to decide whether Title VII protects individuals on this basis and clearly concluded that it does.
The Court noted that the decision was limited to the question of the reach of Title VII. The Court expressly noted that it was not addressing topics such as bathroom access or exemptions based on free exercise of religion. Potential arguments for religious employers may still exist under the religious exemptions in Title VII and in the Religious Freedom Restoration Act (Hobby Lobby v Burwell).
Why is this such a big decision?
Discrimination protections regarding sexual orientation and gender identity or expression were adopted in California back in 2003. However, in a majority of states across the Country, discrimination on the basis of sexual orientation or gender identity was legal, until now. In addition to existing state and municipal protections, discrimination based on sexual orientation and gender identity is now expressly prohibited in all jurisdictions under federal law.
Action for Employers
California law already defines and protects employees against discrimination or harassment on the basis of sex, gender, gender identity, and gender expression. Non-California employers (or CA employers who haven't updated their policies in quite a while) should review their employee handbooks, policies, and benefit plans to ensure compliance with Title VII's prohibition of discrimination based on sexual orientation and gender identity.
CEA members can access a California-compliant harassment prevention policy for your employee handbook by logging in to our website. Remember to train your employees before January 1, 2021!