Massachusetts Employment Law Blog

By: Amanda E. Thibodeau

The U.S. Supreme Court released its highly anticipated landmark decision on whether Title VII of the Civil Rights Act of 1964 (“Title VII”) includes sexual orientation and gender identity as protected from employment discrimination. The Court, in a 6-3 decision, held that the term “sex” in Title VII protects LGBTQ+ employees from employment discrimination.

The Supreme Court reviewed three consolidated cases:  Bostock v. Clayton County, Georgia, No. 17-1618; Altitude Express Inc. v. Zarda, No. 17-1623; and R.G. & G.R. Harris Funeral Homes Inc. v. EEOC, No. 18-107. Morse previously discussed the facts of these cases here. Justice Gorsuch wrote for the majority and was joined by Chief Justice Roberts, and Justices Ginsburg, Breyer, Sotomayor, and Kagan.  Justices Thomas, Alito, and Kavanaugh dissented.

The cases turned on whether Title VII’s prohibitions on discrimination “because of sex” included gay and transgender employees. As Justice Gorsuch writes,

Today, we must decide whether an employer can fire someone simply for being homosexual or transgender. The answer is clear. An 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. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”

Justice Gorsuch explains that under the plain terms of Title VII, an employer is in violation when it takes an adverse action against an employee based, at least in part, on sex. Gorsuch emphasizes that “changing the employee’s sex would have yielded a different choice by the employer.” For example, the Court writes, with two employees who are both attracted to men and are, otherwise, identical, but one is male and one is female, if the employer fires the male employee because he is attracted to men, while keeping the female employee, then the employer has violated Title VII. Discrimination against LGBTQ+ employees, Gorsuch made clear, “necessarily entails discrimination based on sex; the first cannot happen without the second.”

The majority also held that other factors, along with sex, may contribute to an employer’s decision. In other words, the employee’s sex, including their homosexuality or gender identity, “need not be the sole or primary cause of the employer’s adverse action” to run afoul of Title VII.

The dissent written by Justice Alito emphasizes that because homosexuality and gender identity were not commonly known or supported in 1964, the drafters of Title VII did not intend to include LGBTQ+ employees in its protections. Instead, they argue, “because of sex” was meant only to protect against treating women differently than men, and vice versa. Justice Kavanaugh filed his own dissent which makes the argument that while he agrees that Title VII should be expanded to cover sexual orientation, it is not the job or responsibility of the Court to amend Title VII. Instead, that power “belongs to Congress and the President in the legislative process….”

Of note, the Court did not come to a decision on how religious freedom laws, such as the Religious Freedom Restoration Act, would affect such Title VII cases, as none of the litigants raised the issue on appeal. But, the Court did acknowledge that these “are questions for future cases….”

Two of the three named plaintiffs sadly passed away prior to the Court’s decision, but their cases will now have significant implications for employers and LGBTQ+ employees across the country. Up until this decision, many states and jurisdictions were either split or silent on whether Title VII protected LGBTQ+ employees. Even on the federal level, the Equal Employment Opportunity Commission (EEOC) and the U.S. Department of Justice held positions contrary to each other. Now that the highest Court has spoken on the issue, states and agencies alike will now be generally aligned in their positions in protecting LBGTQ+ employees and prosecuting employers who take discriminatory actions. Some states, like Massachusetts, already provided their own individual protections based upon sexual orientation and gender identity, but many states previously did not. Employers should review their internal anti-harassment policies and make sure employees are trained on the prevention and reporting of any discrimination.

For more information, please contact Amanda Thibodeau.