Supreme Court Update: Title VII Prohibits Employment Discrimination Based on Sexual Orientation and Gender Identity

On Monday, June 15, 2020, the United States Supreme Court held in a 6-3 majority that federal law prohibits employers from discriminating against employees because of their sexual orientation or gender identity. The Court’s opinion in Bostock v. Clayton County, written by Justice Neil Gorsuch, considered whether the prohibition against employment discrimination because of sex under Title VII of the Civil Rights Act of 1964 precludes employment discrimination based on sexual orientation and gender identity.

The Court relied on the broad language of the statute to interpret a protection for LGBTQ employees, noting:

“Today, we must decide whether an employer can fire someone simply for being homosexual or transgender. The answer is clear. An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”

The Court also addressed concerns that its ruling may infringe on the religious liberties of employers, noting Title VII includes an express exception for religious organizations. This exception allows religious organizations to give employment preference to members of their own religion. It does not, however, allow religious employers to otherwise discriminate on the basis of race, color, national origin, sex, age, or disability. The Court further noted the federal Religious Freedom Restoration Act of 1993 (RFRA), which prohibits the government from substantially burdening the free exercise of religion unless it furthers a compelling government interest and represents the least restrictive means of doing so, “might supersede Title VII’s commands in appropriate cases.” In his dissent, Justice Alito raised concerns that Title VII’s religious exception provides only narrow protection. However, the Court hinted that future litigation is likely regarding whether Title VII infringes on specific employers’ religious liberties.

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