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  • Writer's pictureBobbi K Dominick

Title VII Workplace Protection for LGBTQ Workers

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The long awaited U.S. Supreme Court opinion is here. The Court has decisively ruled that, under federal law, workplace discrimination against those who are gay or transgender is illegal under Title VII.

Many organizations have put this ruling into practice in their organizations already, with policies that protect workers from such discrimination. The EEOC has issued guidelines indicating that such discrimination violated Title VII. And many state and local human rights organizations (such as our own Idaho Human Rights Commission) have accepted that such discrimination was a violation of Title VII, either through enforcement or through enactment of their own ordinances or laws.

Yet there was still an ongoing debate because in some federal circuits, the courts had ruled that such discrimination was not prohibited by Title VII and thus employers could engage in such discrimination. As is often the case, the issue had to develop through conflict in various circuit opinions before the U.S. Supreme Court could take up the issue.

And the outcome was not a foregone conclusion. Even though the EEOC, an arm of the federal government, had ruled that LGBTQ protections were included in Title VII's reach, the U.S. Department of Justice (under the Trump Administration) had argued against that position, and urged the Court to rule that such discrimination is not protected.

Many thought that the decision would pit the Court's conservative justices, which are commonly thought to number 5 (with Chief Justice Roberts sometimes viewed as a potential "swing" voter), could outvote those justices generally viewed as more conservative, who number 4. But the surprising vote was 6-3 in favor of protection, and Justice Neil Gorsuch, widely viewed as a conservative justice, wrote the majority opinion.

The Court began its summary of the opinion with these words (the Court was considering three combined cases): "In each of these cases, an employer allegedly fired a long-time employee simply for being homosexual or transgender." One plaintiff was fired after his employer learned he was participating in a gay softball league, another was fired after revealing to his employer he was gay, and the third was fired after revealing to her employer that, while she had been presenting as male, she planned to begin presenting herself as female. Also in the summary was the Court's definitive conclusion: "An employer who fires an individual merely for being gay or transgender violates Title VII."

In the past, the Court has interpreted Title VII to prohibit applying different rules to women who have children, applying different benefit rules to women vs. men, and to prohibit unequal treatment based on complaints about same sex harassment. The Court also has a history of ruling that different treatment based upon sexual stereotypes violates Title VII. So it may come as no surprise to those who have studied these prior opinions when the Court states: "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 specifically referred to intentional discrimination based on stereotypes, i.e., if a person is fired because, as an LGBTQ person, they do not act according to how an employer perceives that a "man" or "woman" should act.

The Court declined to offer an opinion on some additional issues that the employers in this cases raised, such as differing treatment for LGBTQ employees in offering amenities such as restrooms, locker rooms (some of which may be fears that do not exist in reality), or what might happen if LGBTQ protections come into conflict with the freedom of religion protections for religious organizations (as opposed to secular organizations). Those issues may arise in the future.

What this means for employers is:

  1. Check your current policies to assure that your nondiscrimination policies apply equally to LGBTQ employees.

  2. Check your current policies against harassment based on sex to assure that harassment based on LGBTQ employees is included in the acts that are prohibited.

  3. Check your anti-harassment training to assure that it includes these important concepts.

  4. Consider adding, if you have not already, a component of unconscious bias training that specifically addressed the unconscious bias that may lead employees to treat LGBTQ employees differently.

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