Dive Brief:

• Employment discrimination on the basis of a worker's sexual orientation or gender identity is illegal under Title VII of the Civil Rights Act of 1964, the U.S. Supreme Court held in a 6-3 ruling June 15 (Bostock v. Clayton County, Georgia, No. 17–1618 (U.S. June. 15, 2020)).
• The ruling is a consolidation of three separate cases argued before the court last year: Bostock v. Clayton County, Georgia; Altitude Express, Inc., et al. v. Zarda, Melissa, et al. and R.G. & G.R. Harris Funeral Homes v. EEOC, et al. Justice Neil Gorsuch, delivering the opinion of the court, wrote that an employer that discriminates against homosexual or transgender employees necessarily and intentionally applies sex-based rules. "There is no escaping the role intent plays: Just as sex is necessarily a but-for cause when an employer discriminates against homosexual or transgender employees, an employer who discriminates on these grounds inescapably intends to rely on sex in its decisionmaking," Gorsuch said.
• The court's ruling affirms the holdings of the 2nd and 6th U.S. Circuit Courts of Appeal, which ruled in favor of the late plaintiffs Donald Zarda and Aimee Stephens, respectively. The 11th Circuit's ruling in favor of Clayton County, Georgia, has been reversed and remanded for further proceedings in accordance with the ruling.

Dive Insight:

The High Court's ruling is a "historic win" for LGBTQ employees, the Transgender Law Center tweeted shortly after the decision's release.

In recent years, the question of whether Title VII prohibited LGBTQ discrimination in the workplace had been one of the highest-profile debates in U.S. employment law, bolstered by a circuit split at the federal level as well as a clash between agencies. While the U.S. Equal Employment Opportunity Commission maintained that LGBTQ discrimination was prohibited by Title VII, the U.S. Department of Justice argued oppositely in an amicus brief filed in Harris. U.S. Solicitor General Noel Francisco, who participated in oral arguments for the three Title VII cases last year, argued that a judicial resolution of the Title VII question would undermine Congressional authority.

Gorsuch and Chief Justice John Roberts provided "crucial support" for the majority's decision in Bostock, JoLynn Markison, partner at law firm Dorsey & Whitney, told HR Dive in an email statement. During oral arguments, Gorsuch questioned whether Title VII has "a more generous causation standard" with respect to determining whether an employee suffered discrimination on the basis of sex or sexual orientation. In the court's opinion, Gorsuch said that Title VII's legal analysis, "asks simply whether sex is a but-for cause" of discrimination; "An employer who discriminates against homosexual or transgender employees necessarily and intentionally applies sex-based rules."

The court's ruling essentially means federally-mandated equal treatment for LGBTQ employees, according to Markison. "If your employment policies do not currently provide for nondiscrimination based on sexual orientation and gender identity, you should update them to explicitly list those categories," she said. "While LGBTQ employees will now receive protection based on 'sex' regardless of employer policies, expanding your policy to include protections for sexual orientation and gender identity is not only the right thing to do, but it will provide evidence that your company intends to comply with Title VII's protection of 'sex' in its totality."

Courts have interpreted over time that Title VII’s definition of unlawful discrimination includes harassment based on protected characteristics, including sex, sources previously told HR Dive. Employers, therefore, also may want to incorporate sexual orientation and transgender status into anti-harassment policies and harassment complaint processing procedures, among other related areas.

However, the ruling won't preclude further action from LGBTQ advocates, who are still working to secure healthcare protections and more for the LGBTQ community, Deena Fides, managing director and chief program and partnerships officer at workplace advocacy group Out & Equal, said in an email statement.