The U.S. Supreme Court issued an historic workplace discrimination decision on June 15, 2020. The Court ruled that Title VII of the Civil Rights Act of 1964 protects employees from discrimination in the workplace based on their sexual orientation or gender identity. Until now, Title VII made discrimination against employees based on their sex unlawful, but protections based on sexual orientation and gender identity were unclear. Consequently, the Court decided to consolidate several cases before it to issue a determinative ruling on Title VII and the extent of its protections to LGBTQ workers.
Since its implementation, Title VII has made it unlawful for any employer to discriminate against any employee based on their “sex.” However, it was unclear how gender roles, gender identity and sexual orientation were to be treated under federal law, which necessitated the Court’s clarification on how Title VII’s protection for discrimination based on sex may apply to the LGBTQ community in the workplace. In a 6-3 ruling, the Court determined that “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.” The Court reasoned that “[a]n employer who fires an individual for being homosexual or transgender, fires that person for traits or actions it would not have questioned in members of a different sex.” Since sex is at the core of an employer’s decision to discriminate against an LGBTQ person, then Title VII applies, and LGBTQ workers are clothed in its protections.
WHAT THE RULING MEANS FOR EMPLOYERS
Most states already have laws in place that make discrimination based on sexual orientation and/or gender identity unlawful. Thus, the Court’s ruling may not change how many employers are already expected to operate. However, those employers who conduct business in states that do not offer discrimination protection to LGBTQ workers, must now implement policies and procedures that ensure their workplace adheres to the protections guaranteed to all workers under Title VII.
Additionally, employers should expect the Court’s ruling will lead to an increase in EEOC charges and lawsuits filed in federal court against those who violate Title VII’s newly extended protections. The EEOC will likely step up its policing efforts against employers it deems to be discriminating against LGBTQ employees. However, the Court did not clarify if an exemption will exist for employers who voice a religious objection to Title VII, which will likely lead to the issue being litigated for guidance to be issued on the matter.
WHAT SHOULD EMPLOYERS DO
- Employers should review and update their handbooks, policies, procedures, and other operational guidelines to ensure compliance with Title VII;
- As with all discrimination claims, companies should take complaints of discrimination made by LGBTQ employees seriously and ensure they are investigated thoroughly;
- Employers should review their practices related to single-sex restrooms, locker rooms, and other workplace areas that separate employees based on gender to ensure all individuals are treated equally in the workplace. The use of unisex locker rooms and bathrooms can help to mitigate any unintended gender discrimination in the workplace; and
- Managers should be trained on how to handle instances of discrimination, and more importantly, on how to create a workplace culture where discriminatory attitudes and behaviors are not allowed to take root.
As always, employers should work with an HR consultant or employment law adviser to ensure compliance.