Supreme Court Applies Title VII Protections to Sexual Orientation and Sexual Identity in Landmark Decision

In a landmark ruling, the United States Supreme Court held that the prohibitions against sex discrimination found in Title VII of the Civil Rights Act of 1964 apply to sexual orientation and sexual identity.  The Court issued an opinion that encompassed three cases dealing with these issues:  Bostock v. Clayton County, Georgia (sexual orientation), Altitude Express, Inc. v. Zarda (sexual orientation), and R.G. & G.R. Funeral Homes v. EEOC, Inc.(gender identity).  Writing for a 6-3 majority, Justice Gorsuch held 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. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”  The decision places Title VII in line with many state anti-discrimination laws that provide explicit protections for workers based on sexual orientation and gender identity.  The Court’s opinion recognizes but leaves as an open question for now the interplay between this expanded anti-discrimination mandate and religious protections for employees and business.  This question is very likely to become the next issue employers will need to navigate in evaluating their non-discrimination policies.

Employers should review their policies and practices to ensure that they comply with the Supreme Court’s mandate.  This includes adopting policies that explicitly include “sexual orientation” and “gender identity” as protected from discrimination, harassment, and retaliation.  Employers should also use these legal changes as an opportunity to update management and employee training in these areas.  Businesses should also remember to ensure that they comply with state and local laws that may provide even more expansive protections.  For Virginia employers, this includes the “Virginia Values Act” that will take effect on July 1, 2020.