Employers Can’t Discriminate Against Gay and Transgender Individuals, Supreme Court Rules
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Employers Can’t Discriminate Against Gay and Transgender Individuals, Supreme Court Rules

Brownstein Client Alert, June 15, 2020

The U.S. Supreme Court issued its long-awaited opinion this morning on whether the prohibition against discrimination in the workplace “because of sex” includes gay and transgender individuals. In an opinion authored by Justice Neil Gorsuch, writing for a 6-3 majority, that question was answered: “An employer who fires an individual merely for being gay or transgender violates Title VII.” 

The three combined cases, Bostock v. Clayton County, Georgia; Altitude Express, Inc., et al v. Zarda, et al; and R.G. & G.R. Harris Funeral Homes, Inc. v. EEOC, provided the court with an opportunity to rule on that over-reaching issue without nuance because there was no dispute that, in each of the cases, the employee was explicitly fired either for being gay or transgender.

Brownstein attorneys authored an amicus brief supporting the employees in these cases, partnering with two Yale philosophy professors and ultimately joined by approximately 80 respected philosophy professors throughout the country. The brief focused on the logic that Justice Gorsuch ultimately relied on–that firing a person for being a man attracted to another man has to be on the basis of sex because, if the employee was a woman attracted to a man, she would not have been terminated. The same rationale applies to transgender people–it is necessary to refer to that person’s gender (or sex) assigned at birth to determine that the employee is acting contrary to traits normally associated with the assigned gender. Justice Gorsuch stressed that all that matters is whether “changing the employee’s sex would have yielded a different choice by the employer.”

While there will be many articles, alerts and news stories that analyze what this means on many levels, the practical reality is that the holding will not make a great deal of difference for employers in the 21 states that already have laws protecting LGBTQ workers. But there are no such protections in most of the southern states and the Midwest. Companies who have employees in states that have such laws likely will not feel the change as they probably already have broad antidiscrimination provisions in their policies and practices. However, all employers should review their policies and practices to ensure that those protections are explicit, especially if there is some autonomy in offices in the states without protections.

Although this opinion—and the fact that two conservative justices, Gorsuch and Chief Justice John Roberts, joined with the more liberal faction—provides hope to many involved in this struggle for equality, there will be other cases to watch. The court’s conservatives have made statements that are seen by many as friendly towards claims from those who allege that their religious beliefs justify their refusal to participate in same-sex marriages or assist in adoptions or foster care involving gay couples. The court did specifically note that the concerns raised by employers about sex-segregated bathrooms, locker rooms and dress codes implicated laws that were not before the court in this matter and that, under Title VII, “we do not purport to address bathrooms, locker rooms, or anything else of the kind.” Those questions, Gorsuch noted, “are questions for future cases, not these.”

But today, even Justice Brett Kavanaugh in his dissent acknowledged this important victory, despite his concerns that the judicial branch was invading the separate powers of the legislative branch.

“Millions of gay and lesbian Americans have worked hard for many decades to achieve equal treatment in fact and in law,” Kavanaugh wrote. “They have exhibited extraordinary vision, tenacity, and grit–battling often steep odds in the legislative and judicial arenas, not to mention in their daily lives. They have advanced powerful policy arguments and can take pride in today’s result.”

The attorneys who worked on the brief include Lisa Hogan, Martha Fitzgerald, Esteban Morin and Carrie Johnson along with summer associates Michaela Redlingshafer and Jordan Cohen. 

This document is intended to provide you with general information regarding a U.S. Supreme Court ruling barring discrimination against gay and transgender individuals. The contents of this document are not intended to provide specific legal advice. If you have any questions about the contents of this document or if you need legal advice as to an issue, please contact the attorneys listed or your regular Brownstein Hyatt Farber Schreck, LLP attorney. This communication may be considered advertising in some jurisdictions.

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