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Sexual Orientation and Gender Identity Are Now Protected Characteristics Under Title VII

on Wednesday, 17 June 2020 in Labor & Employment Law Update: Sarah M. Huyck, Editor

For more than half a century, the law has been clear that Title VII of the Civil Rights Act of 1964 has prohibited employers from discriminating against employees on the basis of sex.  The statutory language, however, does not specifically include, reference, or otherwise address sexual orientation or gender identity among the list of protected bases.  Thus, left uncertain was whether “sex” – as that term is used in Title VII – was to be interpreted broadly so as to prohibit employment discrimination on the basis of sexual orientation or gender identity.  Uncertain, until now. 

On June 15, 2020, the Supreme Court of the United States unambiguously answered this question, declaring that Title VII protects employees against discrimination based on sexual orientation and transgender status. 

The case of Bostock v. Clayton County, Georgia was a combination of three lawsuits, each from a different Circuit Court of Appeal.  Notwithstanding the different circumstances of each action, all three cases shared the fact that each separate employer admitted to firing its employee for being homosexual or transgender.  The Second and Sixth Circuits held that Title VII protected the employee from such conduct; the Eleventh Circuit reached the contrary conclusion.  Given this split in the lower courts, the only question for the Supreme Court’s analysis was a legal one – Does Title VII protect employees against discrimination on the basis of sexual orientation or gender identity? 

The Court answered in the affirmative, issuing a 38-page opinion that can be distilled down to author Justice Gorsuch’s statement that “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”  Accordingly, discrimination against employees on the basis of sexual orientation or gender identity is now actionable under Title VII.

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