WCI, Inc
June 17, 2020

Supreme Court Decision Expands Sex Discrimination

The U.S. Supreme Court, in an unexpected 6-3 decision authored by Justice Neil Gorsuch, held that "An employer who fires an individual merely for being gay or transgender defies the law." With that simple declaration, the High Court ruled that Title VII’s protections from discrimination "because of sex" extend to gay and transgender employees, and an employer may not discriminate against or discharge an individual based solely on sexual orientation or gender identity.

Reaction to the Court’s decision was swift and largely celebratory. Wolters Kluwers’ Labor and Employment Law Daily gathered up a few comments from the wave of responses to the June 15 ruling, as well as guidance for employers in light of the landmark decision:

Human Rights Campaign. "There are truly no words to describe just how elated I am," said Gerald Bostock, one of the petitioners who alleges he was fired from his job as a child welfare services coordinator after joining a gay recreational softball team, in a statement issued by the Human Rights Campaign (HRC). "When I was fired seven years ago, I was devastated. But this fight became about so much more than me … Today, we can go to work without the fear of being fired for who we are and who we love. Yet, there is more work to be done. Discrimination has no place in this world, and I will not rest until we have equal rights for all."

"This is a landmark victory for LGBTQ equality," said HRC President Alphonso David. "No one should be denied a job or fired simply because of who they are or whom they love. For the past two decades, federal courts have determined that discrimination on the basis of LGBTQ status is unlawful discrimination under federal law. Today’s historic ruling by the Supreme Court affirms that view, but there is still work left to be done. In many aspects of the public square, LGBTQ people still lack non-discrimination protections, which is why it is crucial that Congress pass the Equality Act to address the significant gaps in federal civil rights laws and improve protections for everyone."

Seyfarth Shaw. "The implications of this ruling cannot be understated," said Sam Schwartz-Fenwick, a partner in the Chicago office of Seyfarth Shaw, who leads the firm’s LGBT affinity group. "Until today, most jurisdictions in the United Stated offered no employment protections to LGBT individuals. With this ruling, however, the anti-discrimination mandate of Title VII now protects LGBT individuals throughout the country. "Employers, both those who already had LGBT inclusive policies and those who will now have to adopt them in order to comply with the law, will benefit from the growth in productivity and performance that comes when employees are allowed and encouraged to be themselves at work."

Dorsey & Whitney. "This decision has been a long time coming. In the wake of President Trump’s roll-back of health insurance protections for transgender Americans, the LGBTQ community needed a win, and this is it," said JoLynn Markison, a partner in Dorsey & Whitney’s labor and employment practice and an advocate for the LGBTQ community. "Rejecting a long-touted argument by opponents of equal treatment for LGBTQ workers, the Supreme Court today held that it does not matter if an employer treats women as a group the same when compared to men as a group. ‘If the employer intentionally relies in part on an individual employee’s sex when deciding to discharge the employee—put differently, if changing the employee’s sex would have yielded a different choice by the employer—a statutory violation has occurred.’ This is the right result."

"If your employment policies do not currently provide for nondiscrimination based on sexual orientation and gender identity, you should update them to explicitly list those categories. While LGBTQ employees will now receive protection based on ‘sex’ regardless of employer policies, expanding your policy to include protections for sexual orientation and gender identity is not only the right thing to do, but it will provide evidence that your company intends to comply with Title VII’s protection of ‘sex’ in its totality," Markison added.

Jackson Lewis. Attorneys Michelle E. Phillips and Christopher M. Repole, in the New York Metro office of Jackson Lewis, discussed the implications of the landmark decision in a blog post. They note: "The Court’s decision will significantly affect other court cases, federal and state legislation, and even elections," adding that, "[w[hile Circuit Courts, the U.S. Department of Justice, and many district courts had reached contrary decisions, the Court’s decision likely invalidates many of those."

The ruling "largely aligns" with the EEOC’s position that Title VII prohibits discrimination based on sexual orientation or gender identity, they note. "As the federal agency that handles investigations into workplace discrimination, the EEOC already was receiving an increasing number of claims and pursuing increasing monetary awards in sexual orientation and gender identity discrimination cases. The agency likely will be emboldened to commence many more such lawsuits against employers in federal court. It remains to be seen how courts will apply this prohibition where employers voice religious objections in decisions involving LGBTQ+ workers. Nonetheless, the EEOC likely will intensify its pursuit of awards for workers in such cases."

Constangy, Brooks, Smith & Prophete. Robin Shea, a partner in the Winston-Salem, North Carolina office of Constangy, Brooks, Smith & Prophete, LLP, observed that "For many employers and in many jurisdictions, the Court’s decision may not have a significant impact. Many state and local laws already prohibit, and many companies have voluntarily adopted policies prohibiting, employment discrimination on these bases. In addition, federal contractors have been required to prohibit LGBT discrimination and harassment since the Obama Administration.

"However, for employers who are not federal contractors, who have older internal policies, or who have operations in jurisdictions that do not have these laws, the Court’s decision represents a significant expansion of Title VII as many employers understood it."

Shea advised employers to "take the following steps as soon as possible:

  • Review your equal employment opportunity policies to determine whether your company prohibits discrimination or harassment based on sexual orientation and gender identity. If not, amend your policies to include those provisions.
  • Promptly communicate the policy updates to all employees.
  • In some work environments, there may be a risk of "reverse discrimination" against heterosexual employees. We believe that would also violate Title VII as interpreted by the Supreme Court.
  • If your harassment training has not historically addressed harassment based on sexual orientation or gender identity, consider promptly conducting a "mini-session" addressing those subjects, and then include it in your regular training going forward.
  • In determining whether to take adverse action against an employee, ensure that your review includes consideration of whether the employee’s sexual orientation or gender identity played any role in the proposed decision.
  • Take appropriate steps to avoid discriminating in hiring against applicants based on sexual orientation or gender identity."

Fisher Philips. "For employers in many jurisdictions, today’s ruling may be somewhat of a non-story. After all, almost half of the states in the country and many local governments have laws prohibiting sexual orientation discrimination in employment, and many more have laws prohibiting gender identity discrimination. The employers doing business in these jurisdictions have long since integrated workplace protections and policies to include LGBTQ applicants and workers," Fisher Phillips attorneys pointed out in the firm’s Legal Alert on the decision.

"For those doing business in the other half of the country with no existing prohibitions against LGBTQ discrimination, however, you now must take proactive steps to prevent and prohibit LGBTQ discrimination in the workplace. In order to achieve this, you should review and update your written policies and handbooks to ensure that sexual orientation and transgender status are added as protected categories, or the definition of ‘sex’ is updated to include these categories. Dress code policies should be reviewed and applied to ensure that transgender and transitioning employees are permitted to follow the dress code of the gender that they identify with, rather than their biological sex.

The Legal Alert also pointed out that employers "may be wise to consider how this decision will impact future court decisions on these related topics—especially given the fact that we can anticipate a dramatic increase in federal litigation alleging LGBTQ discrimination in the near future."

Employers might want to "reconsider all of your policies with an eye towards this new obligation," noted the firm. "Specifically, you should review your policies regarding single-sex restrooms and locker rooms to ensure that transgender and transitioning employees are permitted to use the restroom and locker room of the gender with which they identify. You should also review health and other benefits offerings to ensure that transgender employees and those with same-sex spouses and domestic partners have equal access to employee benefits.

Finally, you should provide training to employees—particularly the managers and human resources individuals involved with hiring, promotion, discipline, and discharge—to ensure they are aware that sexual orientation and transgender status are protected categories and cannot be the basis of any employment decisions."

From WCI Answers Now ©2020 CCH Incorporated and its affiliates. All rights reserved.

2 Town Square Blvd, Suite 370, Asheville, NC 28803 +1 (800) 621-2685 [email protected]