Title VII Protects Sexual Orientation and Transgender Status
The U.S. Supreme Court has ruled that Title VII of the Civil Rights Act of 1964 protects employees from discrimination on the basis of sexual orientation and transgender status. Title VII is the federal law that prevents discrimination in employment on the basis of race, color, religion, sex, or national origin.
On Monday, June 15, 2020, the Court issued its decision in a series of cases brought under Title VII. There were three cases that the Supreme Court consolidated into the case labeled Bostock v. Clayton County. Two of these cases involved employees who were terminated because of their sexual orientation. The third involved an employee who was terminated because she was going through a gender transition. Six members of the Court ruled in favor of the employees, including the four liberal members of the Court along with Chief Justice John Roberts and recent Court appointee Neil Gorsuch. Justice Gorsuch wrote the majority opinion on behalf of the Court.
Bostock Decision Expands Protections Under Title VII
Justice Gorsuch’s opinion makes it clear that employers may not terminate employees based on their sexual orientation or transgender status. The opinion also indicates that employers may not institute a blanket prohibition on hiring individuals based on their sexual orientation or transgender status. While the Court made no explicit reference to other forms of personnel activity such as promotion or training, the Bostock decision should apply to all activities covered under Title VII.
The defendants in the cases covered by the Bostock decision had raised concerns about the effect on religious institutions of interpreting Title VII to include sexual orientation and transgender status. While mentioning issues associated with religious institutions, the Court’s majority decision did not specifically address how the decision would be reconciled with the special status given to these institutions.
Congress Can Reverse Bostock Decision
The Court’s decision prohibiting discrimination based on sexual orientation or transgender status in employment is different than the Court’s earlier decision in Obergefell v. Hodges. Obergefell stated that there is a constitutional right to marriage, and that this right must be extended to same-sex couples. The Supreme Court’s decision in Bostock was based on rights associated with a law passed by Congress (in this case, Title VII). Congress has the authority to reverse the Court’s decision in Bostock if the House and Senate pass a bill to that effect that is then signed by the President.
Ramifications for Federal Contractors and Subcontractors
Federal contractors and subcontractors have been barred from discriminating against applicants or employees based on sexual orientation or transgender status since 2014. At that time, Executive Order 11246 was amended to provide protections based on sexual orientation and gender identity. The Supreme Court’s decision has two practical effects on these changes to Executive Order 11246. First, it validates the changes to the Executive Order by stating that Title VII prohibits these forms of discrimination. The Executive Order is based in part on Title VII. An opposite decision in Bostock may have invalidated these changes. Second, it extends the prohibition on discrimination based on sexual orientation and gender identity to employers other than federal contractors and subcontractors.