The U.S. Supreme Court ruled on June 15 that Title VII of the Civil Rights Act of 1964 prohibits employment discrimination based on sexual orientation and/or transgender status. The decision was issued in the combined cases Bostock v. Clayton County, Georgia; Altitude Express, Inc. v. Zarda; and R.G. & G.R. Harris Funeral Homes, Inc. v. Equal Employment Opportunity Commission.
Title VII applies to employers with 15 or more employees, including federal, state and local governments. Under Title VII, an employer may not discriminate with regard to any term, condition, or privilege of employment. While Title VII does not explicitly mention sexual orientation or gender identity, it does protect against discrimination “because of … sex.” In its 6-3 decision, the Court found that “homosexuality and transgender status are inextricably bound up with sex” and “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”
Justice Neil Gorsuch’s majority opinion holds:
[I]n Title VII, Congress outlawed discrimination in the workplace on the basis of race, color, religion, sex, or national origin. 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.
Of note, Justice Gorsuch observed that concerns about religious convictions are addressed in Title VII’s carve-outs for religious institutions and the First Amendment’s bar on the application of employment discrimination laws “to claims concerning the employment relationship between a religious institution and its ministers.” The Court specifically reserved for future cases the interplay between Title VII and the Religious Freedom Restoration Act of 1993.
The Supreme Court decision is particularly significant for Kansas and Missouri employers subject to Title VII, as neither state explicitly prohibits employment discrimination based on sexual orientation and/or transgender status under state law, although various local laws do provide such protections. The decision means Title VII outlaws sexual orientation and transgender-based discrimination throughout the country, regardless of the underlying state law.
Employers should update their policies and practices — including training — to ensure they comply with the Supreme Court’s ruling.