The Civil Rights Act:  Supreme Court’s Landmark Decision Today That Under Federal Law Employers Cannot Discriminate Against Homosexual or Transgender Employees

The Civil Rights Act:  Supreme Court’s Landmark Decision Today That Under Federal Law Employers Cannot Discriminate Against Homosexual or Transgender Employees


The United States Supreme Court ruled today that under Federal Law employers cannot discriminate against an individual based on that employee’s sex.  The Court interpreted the 1964 Civil Rights Act to hold that when an employer decides to fire, fail to hire, or otherwise discriminate against an employee who is or who is perceived to be homosexual or transgender, that employer violates the Civil Rights Act because the employer is basing its discriminatory action, at least in part, on the individual’s sex.

The Court based its ruling on an interpretation of the plain language of the Civil Rights Act, Title VII, which states, it is “unlawful . . . for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual . . . because of such individual’s race, color, religion, sex, or national origin.” 42 U. S. C. §2000e–2(a)(1).  Without getting into all of the details in the opinion (read it here), the Court essentially stated that when an employer takes any discriminatory action against an employee due to the employee’s homosexual or transgender status, the employee’s sex necessarily play a role in the decision.  For example, when an employer chooses to fire a male employee whose sexual preference is or is perceived to be other men, that employer is basing its decision, at least in part, on that employee’s sex.  Because the employer would not fire a similarly situated female employee whose sexual preference is men, the termination of the male employee is discrimination based on sex and is illegal under Title VII.  The Court summarized the key issue best:

By 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.  Any way you slice it, the employer intentionally refuses to hire applicants in part because of the affected individuals’ sex, even if it never learns any applicant’s sex.

It does not matter if the employer’s decision to discriminate against an employee who is homosexual or transgender is also based on other factors that are not protected basis under Title VII – so long as one of the reasons is due to the fact that the employee is or is perceived to be or has homosexual or transgender tendencies.  That one basis, even among others, triggers the protected “sex” basis under Title VII.  The Court also noted that it does not make a difference if an employer treats both men and women the same comparably as groups.  For example, if an employer fires or refuses to hire a gay man and then later a lesbian woman, both at least partly due to the fact that the employees prefer individuals of the same sex, that employer has violated Title VII two times.

The Court’s decision today has immediate and direct impacts on the employment world and employers everywhere would be wise to pay attention.  While the Court only specifically dealt with the cases before it, which were terminations of two homosexual individuals and a transgender woman, the Court’s decision could lead to future legal rulings in favor of employees who fall elsewhere outside of the traditional sexual and gender spectrum if an employer discriminates against that employee based on the employee’s gender or sexual preference.  Some states, like California and New York, already have these types of protections in place, but this ruling expands similar protections on a federal level across the states in employment issues, and likely other protected activities (e.g. housing, etc.).

As always, if an employer is considering terminating or taking any action against an employee that might raise the specter of claims of discrimination under federal, state  or city laws on any basis (e.g. race, color, religion, sex – including pregnancy, childbirth, related medical conditions, national origin, age, disability or medical condition, citizenship, marital status, military status, status of victim of domestic violence, assault or stalking), whether that claim might be valid or not, we recommend seeking legal counsel first.

Employers should also keep an eye out for future litigation in this area as we expect that employers may claim a right to the free exercise of his or her religion under the Constitution (even corporate employers) will inevitably collide with the Court’s clear decision that Title VII protects employees from discrimination against them because they are homosexual or transgender.  The Court specifically noted that it is “deeply concerned with preserving the promise of the free exercise of religion enshrined in our Constitution” and that there are statutory exceptions and prohibitions designed to address some of those potential issues, including §2000e–1(a) and the Religious Freedom Restoration Act of 1993 (RFRA).  The Court noted that RFRA can act as a “kind of super statute” and that “it might supersede Title VII’s commands in appropriate cases.”  We will watch to see how this develops and, again, encourage employers to contact us with concerns in this area.

Melissa assisted in preparing this client update.  Thank you, Melissa.  For more information, feel free to contact Dawn with any questions:

Epps & Coulson, LLP

Attorneys Admitted to practice in California, New York, Colorado, Texas, Oregon, and Hawaii


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