The U.S. Supreme Court on June 15, handed down a historic ruling in a trio of cases in which workers had been fired for their sexual orientation or gender identity. The question before the justices was whether an employee can fire someone simply for being gay or transgender, and the answer the court gave, in a 6-3 decision, was “no.”
“The answer is clear,” wrote Justice Neil Gorsuch in the majority opinion. “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.”
Title VII doesn’t explicitly mention sexual orientation or transgender status as protected characteristics. But the statute does prohibit employers from taking certain actions against employees “because of sex” and, the court concluded, “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”
For example, if an employer fires a male worker because he is attracted to men, the employer is discriminating against him for traits that are tolerated in a female coworker, the court said. Likewise, if an employer fires a transgender employee who was identified as male at birth, but who now identifies as a woman, for traits or actions that would be tolerated in a worker who was identified as female at birth, the majority wrote, “the individual employee’s sex plays an unmistakable and impermissible role in the discharge decision.”
TEA LEAVES, TROJAN HORSES
Many had speculated Gorsuch, a staunch textualist, would join his more liberal counterparts in ruling that Title VII protects LGBT workers.
“There was definitely some sense, both from the oral argument that I was able to attend as well as from the tea leaves that people were reading, that Justice Gorsuch was heavily persuaded by the textualist argument,” said Craig Konnoth, associate professor at the University of Colorado Law School. The bigger surprise was that Chief Justice John Roberts was also swayed to side with the majority, said Konnoth, who filed an amicus brief in support of one of the plaintiffs, Aimee Stephens, who had been fired for being transgender.
Brownstein Hyatt Farber Schreck shareholder Lisa Hogan agreed the 6-3 split was unexpected. “I thought all along that if we were going to prevail, it would be either Justice Gorsuch or Chief Justice Roberts who would come on over. The fact that both of them did was a pleasant surprise,” said Hogan, who filed an amicus brief on behalf of several philosophy professors in support of the LGBT employees.
Gorsuch noted that both the First Amendment and the Religious Freedom Restoration Act of 1993 could allow for religious exemptions for certain employers, but “how these doctrines… interact with Title VII are questions for future cases.”
“I’m not sure that exemption is going to be sweeping,” said Brett Painter, a partner in the employment and labor group at Davis Graham and Stubbs. “I think it’s going to be pretty narrowly interpreted with respect to organizations that are faith-based, and it’s not the case that any employer is going to be able to rely on that exception to get out from under the requirements.”
According to Konnoth, last week’s holding could help LGBT people gain protections in other areas, such as education, “because Title IX and Title VII have generally been read symmetrically,” as well as housing and health care. But the added protections could be accompanied by new religious exemptions, he said.
“I think that religious advocates and others will use this as a wedge issue to introduce broad religious protections across numerous areas of law,” Konnoth said. “As long as LGBT individuals were excluded from the law, it was hard for them to argue that religious protections were required. But now that [LGBT protections] are within the law, they are more likely to try and use this almost as a Trojan horse to get religious exemptions within the law.”
PRACTICALLY SPEAKING
None of the employers in the three cases before the Supreme Court disputed the allegations they had fired their employees because of sexual orientation or gender identity, which made for “a very clean analysis,” said Hogan. According to Konnoth, employers were often open about discriminating based on sexual orientation and gender identity, while they were reluctant to admit discrimination they knew to be illegal, such as firing someone because of their race. “I think that’s likely to change now,” he added.
But for employers in Colorado and other states that already have anti-discrimination laws protecting LGBT workers, the practical effects of the SCOTUS ruling are likely to be limited. “Employers, employees and employment lawyers are already sensitive to these protected characteristics,” said Painter, who added that attorneys in Colorado have long been advising clients to include sexual orientation and gender identity in employee handbooks and training.
“I think in terms of this decision for Colorado employers, it’s not really going to change the landscape all that much,” he said. “But it’s an opportunity for employers to send the message again and make sure that employees understand what the protections are in the workplace and how to conduct themselves.”
Hogan recommended employers with employees in states without state protections for LGBT workers “take a very good look at policies and practices” and implement training to make employees aware of discrimination and implicit bias.
Even in states that already prohibit discrimination against LGBT workers, an employee might want to bring claims under Title VII instead of — or on top of — claims under state law. While federal law used to provide more expansive remedies, Painter said, Colorado’s discrimination law has been amended so the remedies available are more in line with those under Title VII. “Both state and federal civil rights agencies do a good job of enforcing the laws,” Painter said. “I’m not sure that there’s necessarily an advantage to one as opposed to another.”
Hogan said that depending on the enforcement mechanisms, level of damages and proof required in each state, an employee might prefer state versus federal court, or vice versa.
“It’s nice that there are these additional protections, and certainly just the level of recognition that the U.S. Supreme Court has settled this issue is a big, big development in the evolution of civil rights in this country,” she said.
—Jessica Folker