Tri-State SHRM

Supreme Court Decision Regarding Title VII and Sexual Orientation, Gender Identity as Protected Classes

06/16/2020 8:48 AM | J.W. Bramlett (Administrator)

In light of the new USSC decision this morning, which states that sex discrimination under Title VII includes sexual orientation and gender discrimination, employers must change their policies and handbooks to include sexual orientation and gender identity in any listings of protected classifications.



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As I indicated this morning, the U.S. Supreme Court today issued a 6-3 opinion finding that Title VII's anti-discrimination provisions apply to LGBT workers.  There is a lot of legal discussion (obviously) in the full majority opinion and the two dissenting opinions.  I won't clog up HR Connect with those details but if anyone is interested, I've attached the decision here.  

At the end of the day, the majority opinion was decided on a very simple basis - that the language of Title VII prohibits discrimination against LGBT individuals because it is discrimination based on sex.  The following language from Justice Gorsuch's majority opinion explains:

"An individual's homosexuality or transgender status is not relevant to employment decisions. That's because it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex. Consider, for example, an employer with two employees, both of whom are attracted to men. The two individuals are, to the employer's mind, materially identical in all respects, except that one is a man and the other a woman. If the employer fires the male employee for no reason other than the fact he is attracted to men, the employer discriminates against him for traits or actions it tolerates in his female colleague.

Or take an employer who fires a transgender person who was identified as a male at birth but who now identifies as a female. If the employer retains an otherwise identical employee who was identified as female at birth, the employer intentionally penalizes a person identified as male at birth for traits or actions that it tolerates in an employee identified as female at birth. Again, the individual employee's sex plays an unmistakable and impermissible role in the discharge decision."

Obviously, this decision could yield further action in the courts...specifically in the realm of the Religious Freedom Restoration Act (which has Title VII implications).  But that is a post for another day.

At the end of the day, the notes from Sheila and John are correct - you should update your policies to reflect that discrimination based upon sexual orientation or gender identity are prohibited and you should train all your staff regarding that fact.

Dustin Paschal
Chair, DallasHR Board of Trustees
Simon | Paschal PLLC
Dallas TX

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