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<h5>The Background</h5>  On June 15, 2020, the Supreme Court of the United States (SCOTUS) held that Title VII prohibits employers from discriminating against individuals on the basis of their sexual orientation or status as a transgender individual.  This decision answered the writ of certiorari granted for three consolidated cases from three different circuits: the Second, Sixth and Eleventh.  The Second Circuit case was Zarda v. Altitude Express, where a skydiving instructor terminated due to his sexual orientation alleged that his termination was sex stereotyping in violation of Title VII. The Second Circuit agreed, reversing precedent and holding that Title VII’s protections extend to sexual orientation.  The Eleventh Circuit held oppositely in Bostock v. Clayton County, dismissing a Title VII complaint brought by a former employee who alleged that he was fired because he is gay.  The final case was decided by the Sixth Circuit in favor of a transgender individual who asserted violations of Title VII after she was terminated right after she announced her plans to transition to and dress as a woman. The Sixth Circuit ruled in R.G. & G.R. Funeral Homes v. EEOC that Title VII prohibits discrimination on the basis of gender identity.  The consolidated cases were argued on Oct. 8, 2019, and the central theme of oral argument was how to apply SCOTUS’ precedent that Title VII prohibited discrimination on the basis of sex stereotyping.  <h5>The Decision</h5>  Title VII prohibits discrimination, in relevant part, “because of sex.” In holding that Title VII protects gay and transgender employees, SCOTUS determined that because a violation of the law is said to occur when an employer intentionally bases an employment decision at least in part on sex, then when an employment decision is based on one’s sexual orientation and/or transgender status, at least part of that decision can also be said to be intentionally based on sex. Specifically, the Court held:  Because discrimination on the basis of homosexuality or transgender status requires an employer to intentionally treat individual employ­ees differently because of their sex, an employer who intentionally pe­nalizes an employee for being homosexual or transgender also violates Title VII.  ***  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.  The Court likened disparate treatment based on sexuality and gender identity to other forms of sex discrimination it has previously held to have violated Title VII, even though the main and/or sole motivation was not on the basis of one’s biological sex –for example, a company’s refusal to hire mothers of small children, a company requiring women to pay more into pension funds based on their longer life spans and sexual harassment by harassers of the same biological sex. The Court referenced its prior holdings that “because of” means “by reason of” or “on account of,” which means the decision would not have happened “but for” the individual’s sex. This has long been interpreted to mean that as long as a plaintiff can show that sex was one of the “but for” causes of an employment decision, there has been a violation of Title VII. The Court held that because sex was necessarily one of the reasons for the employment decision, it violated Title VII.  In response to the oft-cited argument that the legislature should have and could have amended Title VII if they wanted it to include protections for sexual orientation and transgender status, the Court held that since the statute did not have any restrictions or exceptions, the Court applies the broad rule of what the statute says, which is that any intentional discrimination because of sex is a violation. The Court also rejected the argument that since “sex” meant merely biological sex at the time Title VII was drafted and could not possibly have been understood or intended to mean sexual orientation or transgender status, Title VII should not be extended to protect these new groups. Instead, the Court held that it could not take into consideration the “limits of the drafter’s imagination” to “ignore the law’s demands.” Nor could the Court read into the statute some sort of ambiguity that simply does not exist in order to allow the Court to review legislative intent and history behind Title VII just because the statute’s application in these cases reaches “beyond the principal evil” legislators may have intended or expected to address.  <h5>The Implications for Employers</h5>  Many employers already have policies prohibiting discrimination or harassment against employees on the basis of sexual orientation or gender identity, either as the result of state laws or voluntarily to encourage diversity and inclusion in their workplace. For those employers, this ruling changes very little. Now that it is official, however, all employers should audit their current policies to ensure that they clearly state that discrimination based on sexual orientation and gender identity will not be tolerated.  There also may be a bit of education required for employers first implementing or newly implementing these restrictions. Indeed, many people are not fully familiar with what gender identity and sexual orientation can mean, how they can manifest in employment, and what kinds of actions would not be tolerated. Therefore, training should be conducted to confirm that all employees understand the kinds of behavior that will not be tolerated. Managers also must be trained to recognize this kind of behavior and enforce these policies.  In addition to generating unwanted press coverage, Title VII violations can result in hefty payouts in back wages, compensatory damages, punitive damages and attorneys’ fees, so it’s important that these policies are widely and strictly enforced to avoid violations.  Authorship Credit: Amanda Van Hoose Garofalo

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