Writing for a 6-3 majority, Justice Gorsuch (Alito, Kavanaugh & Thomas dissented) acknowledged that while the drafters of the Civil Rights Act of 1964 might not have imagined the Act would be invoked by homosexual or transgender employees claiming its protection, “the written word is the law, and all persons are entitled to its benefit.” The decision in the trio of cases from the 11th, 2nd, and 6th circuits settles a dispute amongst the circuits as to whether Title VII bans discrimination in the workforce based upon the fact that an employee is homosexual or transgender. The Court’s answer is that “[a]n employer who fires an individual merely for being gay or transgender defies the law.”
Focusing on the language of Title VII prohibiting discrimination “because of” sex, the Court declined to weigh on on whether the term “sex” included anything other than biological distinctions between men and women. Assuming this definition, the Court concluded that discrimination on the basis of homosexuality and transgender status are “inextricably bound up with sex” when examined in the context of Title VII’s causation standard and the fact that Title VII prevents discrimination against individuals, not groups. The best example of the Court’s reasoning comes from a hypothetical. Assume, the opinion asks, that a model employee arrives at the holiday party of an employer who has a policy to fire homosexual employees and introduces a manager to Susan, the employee’s wife. Whether the employee gets terminated depends on whether the employee is a man or a woman–a consideration that requires the employer to treat the employee worse because of their sex. Further, the Court reasoned, it doesn’t matter to Title VII’s causation standard “that two causal factors may be in play–both the individual’s sex and (the sex to which the individual is attracted or with which the individual identifies).” Under this analysis–that employment decisions based upon homosexual or transgender status necessarily require decisions based in part of sex–it was no defense to the Court’s decision that an employer would treat homosexual or transgender men and women the same. In other words, it’s no defense for an employer to say it would terminate gay men and women equally because the decision making required the employer to–at least in part–consider sex in making the decision adverse to an individual in violation of Title VII.
Notable in this trio of cases are two points: (1) each of the three employees admitted that the homosexual or transgender status of the employees was the reason for their termination–without any other reason; and (2) none of the employers raised religious liberty or free exercise arguments.
What does this mean for employers?? First and foremost, employers with fifteen or more employees should not have either a stated or unstated policy to discriminate against transgender or homosexual individuals. All employers should review their policy manuals to insure that no such policy is stated or implied.
The Court’s decision does not mean that an employer cannot refuse to hire or terminate a homosexual or transgender person. The courts will still honor the McDonnell Douglas and Faragher/Ellerth analyses. Thus, employers may still proffer a non-discriminatory reason for the employment action, and the employee would still be required to show that the proffered reason was pretextual. Employers will also have the Faragher/Ellerth defense to show that it took reasonable steps to prevent and correct the action and the aggrieved employee failed to take advantage of such measure. To rely on the Faragher/Ellerth defense, however, the employer should have a clearly stated antidiscrimination policy, grievance process, and investigation protocol. And, as always in employment matters, Document–Document–Document.