The U.S. Supreme Court Holds That Title VII Protects Sexual Orientation and Gender Identity
Miller & Martin PLLC Alerts | June 15, 2020
Author: Stacie Caraway
The U.S. Supreme Court has ruled on an issue that has been one of the most anticipated decisions from the Court in a long time.
Specifically, in order to bring uniformity on this issue nationwide, the Court held today in the cases of Bostock v. Clayton County, Georgia, Altitude Express, Inc., et al. v. Zarda et al., and R. G. & G. R. Harris Funeral Homes, Inc. v. Equal Employment Opportunity Commission et al., that Title VII of the Civil Rights Act of 1964 protects applicants and employees from discrimination (and as a subset of discrimination, harassment) on the basis of sexual orientation and gender identity just as other previously-recognized forms of gender discrimination.
Conservative Justice Neil Gorsuch wrote the majority opinion which Chief Justice Roberts along with Associate Justices Ginsburg, Breyer, Sotomayor, and Kagan joined. Justice Alito wrote a dissenting opinion in which Justice Thomas joined. And Justice Kavanaugh wrote his own dissenting opinion.
What Should Employers Do Now?
This decision means that employers who previously have not regarded sexual orientation and/or gender identity as protected classes because the law in your state was unsettled on these questions (as it was in Tennessee and Georgia for private, non-federal contractor employers) now will need to protect these characteristics the same as you do race, color, religion, and national origin.
Most employee handbooks have “catch-all” provisions in the “Equal Opportunity” and “Anti-Harassment” sections which say something along the lines of “and any other characteristic which is protected by applicable federal, state, or local law” at the end of the traditional list of protected classes of gender, race, color, religion, and national origin (all of which are protected by Title VII) along with age, disability, genetic information, pregnancy, and military service. If you do not have such a “catch-all” provision in your employee handbook, we would recommend your amending these sections either to add one or to specifically reference “sexual orientation” and “gender identity” in the list of groups which are protected from discrimination and harassment in (and relating to) your workplace. Technically, your reference to “gender” also could be deemed sufficient to cover these two groups, since in today’s decision the Supreme Court basically said that “sexual orientation” and “gender identity” are protected just as “other forms of gender discrimination.”
More importantly though, employers need to communicate to your supervisors that sexual orientation and gender identity both now have been officially recognized as protected groups, again just like race, color, religion, and national origin, and explain to them that this means that no employment decision can be based on these now universally-protected characteristics.
You also need to inform all employees that harassment on the basis of either of these protected groups now is illegal (if you did not regard it as such before because the law was unsettled in this area nationally).
We realize communicating these developments may be challenging in this season where many employees are still working remotely, but it warrants a quick email, etc. sometime this week just saying something along the lines of “X Company wants to make sure all employees are aware that as of June 15, 2020 the United States Supreme Court has recognized both sexual orientation and gender identity as protected characteristics just like race, color, religion, and national origin and the others which are referenced in our Equal Employment and Anti-Harassment policies. Additional information and training will be offered regarding this new development once we are able to have such training again. But for now, preliminarily, we just want to make sure all our employees are aware of it. ** Should you have any questions about it, please contact Human Resources.”
Some employers also may want to go ahead and provide some examples of what these protected groups are, perhaps depending on whether or not you have ever addressed them in prior policies or training. Some examples you could include at the ** above in a brief statement could be something along the lines of “By way of providing a few brief examples of what this new Supreme Court decision means to our workforce: (1) Employees may not make comments to one another regarding being “gay” or “homosexual” or asking questions regarding one another’s sexual orientation or making negative comments about gay, lesbian, homosexual, bi-sexual, or other groups based on their sexual orientation. (2) The same is true regarding employees who indicate that they no longer wish to be identified by their birth gender and now want to be identified by a new name and/or pronoun(s). If an employee previously went by the birth name of “Mary,” and they now based on a new chosen gender identity wish to be called “Marvin” and referred to with masculine or a neutral pronoun such as “they” rather than as “her” or “she,” other employees must respect and honor these requests. This includes not making fun of or otherwise making negative comments about such individuals whether in-person or via social media, email, text, etc. (3) Sexual orientation or gender identity also may not be used as a negative characteristic in making hiring, promotion, evaluation, or other employment decisions.”
Again, obviously, this is a complicated area of the law – and will be more so depending on how much you have previously addressed these issues in your current policies and anti-discrimination and harassment training.
Please let us know how we can be of further assistance as you work to comply with this new significant legal development for our nation. We realize it is coming into an already contentious and stressful in many ways time in our nation’s history, so you may also want to ask all employees “As a first step, to continue being kind and respectful to one another, even if you are not sure you understand all of the ramifications of this new Supreme Court decision.” Kindness, forgiveness, and grace to overlook when each of us may engage in conduct or words others do not understand or relate to is much needed right now in all areas of life as we all strive to both work and live together in unity the best we can in these ever-changing times.