Labor & Employment Law Blog

The Court’s 6-3 opinion likely represents the biggest development in LGBTQ rights since the Court legalized same-sex marriage nationwide in 2015.  Two conservative justices—Neil Gorsuch, a 2017 Trump appointee who wrote the opinion, and Chief Justice John Roberts—joined the Court’s four liberal justices in the decision.  Justices Brett Kavanaugh and Samuel Alito dissented, with Justice Clarence Thomas joining Justice Alito’s dissent.

As the primary piece of federal antidiscrimination legislation, Title VII bars employers from discriminating against employees on the basis of sex, race, religion, color, or national origin.  The Court’s opinion combined and considered three separate cases before it, all of which involved employees who alleged they had been terminated based on employee’s sexual orientation or transgender status.  

The specific question for the Court was whether an employer can terminate an employee simply for being homosexual or transgender and focused primarily on the definition of “sex” under Title VII. 

By finding that it is impossible to discriminate on the basis of homosexuality or transgender status without impermissibly discriminating because of sex, the Court stated “[t]he 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.”  Therefore, “[b]y discriminating against homosexuals, the employer intentionally penalizes men for being attracted to men and women for being attracted to women.  By discriminating against transgender persons, the employer unavoidably discriminates against persons with one sex identified at birth and another today.” 

The Court noted that its opinion pertains solely to discrimination issues under Title VII.  The Court expressly left open whether similar protections are afforded under Title IX of the Education Amendments of 1972 regarding access to bathrooms/locker rooms based on gender identity, as well as protections afforded under the First Amendment concerning religious beliefs and the refusal to provide services to certain individuals due to their sexual orientation or gender identity.

While the case will have profound impact in jurisdictions governed only by Title VII discrimination law, in California, the Fair Employment and Housing Act has prohibited discrimination and harassment against employees based on sexual orientation since 2000, and gender identity and gender expression since 2011.  On July 1, 2017, the Fair Employment & Housing Council amended FEHA regulations to protect transgender status.  As a result of this decision, employers may see an uptick of lawsuits and EEOC complaints in jurisdictions where sexual orientation and transgender status were not already protected by law. 

If you have any questions about how this opinion affects your business, please contact the author or your routine counsel at Atkinson, Andelson, Loya, Ruud & Romo.

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