Supreme Court Holds Employment Discrimination Based on Sexual Orientation and Gender Identity Constitute Sex Discrimination under Title VII

On June 15, the United States Supreme Court ruled that Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating against employees based on sexual orientation and gender identity. Although state and local laws already provided causes of action based on sexual orientation and gender identity to employees in certain jurisdictions, the Court’s decision extends these protections across the United States and provides all such individuals with a federal cause of action.

In addressing the question of whether sexual orientation and gender identity discrimination constitute sex-based discrimination under Title VII, the Court consolidated three cases with similar fact patterns. R.G. & G.R Harris Funeral Homes, Inc. v. Equal Employment Opportunity Commission out of the Sixth Circuit concerned a termination based on an employee’s transgender status, and a circuit split between the Eleventh and Second Circuits addressed terminations of a child welfare advocate (Bostock v. Clayton County, Georgia) and a skydiving instructor (Altitude Express, Inc. v. Zarda) because they were gay. In a 6-3 decision (with Justices Alito, Kavanaugh and Thomas dissenting), the Court held that the scope of Title VII’s prohibition against sex-based discrimination necessarily includes discrimination based on an employee’s sexual orientation or transgender status. Writing for the majority, Justice Gorsuch explained that “[a]n 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,” and thus “[s]ex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.” The Court further clarified that even if multiple factors contributed to the challenged employment decision, as “long as the plaintiff’s sex was one but-for cause of that decision, that is enough to trigger the law.”

Although this landmark decision has national implications, New York State and City law already extended protection against discrimination to employees based on sexual orientation and gender identity. New York State has prohibited sexual orientation discrimination in employment since 2003 through the Sexual Orientation Non-Discrimination Act. Additionally, New York State added “gender identity or expression” as a protected class under the New York State Human Rights Law in 2019 through the Gender Expression Non-Discrimination Act (GENDA). Employees in New York City received protection under the New York City Human Rights Law based on sexual orientation in 1986 and gender identity in 2002.

Employers should ensure that anti-discrimination policies and training materials reflect that sexual orientation and gender identity are protected characteristics under the law. For questions about the United States Supreme Court’s decision or guidance in modifying anti-discrimination policies or training materials, please contact a member of Kramer Levin’s Employment Department.