Title VII – Discrimination on the Basis of Sex Now Includes Protections for Sexual Orientation

By: Kenneth E. Smith

Yesterday, the United States Supreme Court held that Title VII of the Civil Rights Act of 1964 – the federal law that prohibits discrimination in employment on the basis of sex, race, color, national origin, and religion – also applies to discrimination against gay and transgender persons. The ruling is one of the most impactful for employee rights since the enactment of Title VII.

The case, Bostock v. Clayton County, Georgia, examined whether discrimination against gay and transgender persons was inherently based on “sex,” thus triggering Title VII’s protections for sex-based discrimination. In a 6-3 decision, Justice Neil Gorsuch wrote that “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…[s]ex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”

The Supreme Court’s ruling addresses a circuit split over whether discrimination on the basis of sex also includes discrimination on the basis of one’s sexual orientation. The Sixth Circuit – which includes Ohio – had previously held that discrimination against a transgender employee was prohibited under Title VII, while the Eleventh Circuit, for example, had explicitly held that Title VII did not apply to discrimination against gay or transgender workers. Moreover, less than half of the states have laws prohibiting discrimination on account of sexual orientation, gender identity, or gender expression. Now, there is clear federal guidance that such discrimination is, in fact, discrimination based on sex and is thus prohibited under Title VII.

Employers should take note of yesterday’s ruling and ensure their anti-discrimination policies prohibit discrimination on the basis of sexual orientation, gender identity, and gender expression. Anti-discrimination training should include discussion of discrimination against LGBTQ employees and no adverse hiring or employment decisions should be made against a person based upon their sexual orientation or gender status.

If you have any questions on how we can assist your business with anti-discrimination policies or training, please contact one of Mansour Gavin’s Labor and Employment attorneys.

On Monday, May 4, Amy Kullik will present at Cleveland SHRM’s seminar Virtual Learning: Anti-Asian Discrimination & Harassment in the Workplace in the Wake of COVID-19.

Event Overview:
As employers reopen across the state, and for those who have remained open, it is important to recognize situations involving anti-Asian discrimination against their workers of Asian descent as a result of COVID-19, originating in China. Employers will learn about the types of harassment that such individuals are experiencing not only in the workplace but also in public as well.  This program will highlight the importance of awareness, education and communication as well as what steps employers should be taking now to prevent the impact of this stigma and to address anti-Asian discrimination in the workplace.

The objectives for the event are:
Awareness of Issues Facing Employees of Asian Descent
How Employers Can Prevent Discrimination & Harassment
Steps to Address Discrimination & Harassment

This program has been submitted for SHRM and HRCI recertification 1.0 credit hour.

Click here for additional information or to register for this free event.