On Monday, June 15, 2020, the U.S. Supreme Court (SCOTUS) announced that Title VII of the Civil Rights Act of 1964, which bans sex discrimination in employment, encompasses a prohibition on job discrimination based on sexual orientation or identity. The decision applies to almost all employers with 15 or more employees.
In October, the court heard oral arguments on this issue in a consolidation of three cases. We published a detailed post then in which we explained the legal questions, facts and history of the three disputes, each involving an employer that had fired a gay or transgender employee.
A decision with widespread effects
This decision offers groundbreaking protection on a national level.
New York state and New York City already had laws in place protecting against discrimination based on sexual orientation by most employers with at least four employees – and, in New York City, also based on gender identity or expression. However, fewer than half of all states had laws protecting against these types of discrimination prior to the recent SCOTUS decision.
“But-for” test and the power of words
The court majority reasoned that to fire someone based on their sexual orientation or transgender status does so “for traits or actions [an employer] would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the [firing] decision….”
When the Civil Rights Act passed in 1964, Congress may not have foreseen it applying to these situations, but the majority opinion stated, “[o]nly the written word is the law, and all persons are entitled to its benefit.”
Under Title VII, if the termination or other treatment on the job would not have happened “but for” the “prohibited factor” – here the employee’s sex – then the employer violated the law. The employee’s sex does not have to be the primary cause or the sole cause, just a necessary one – even if there were other reasons contributing to the employment action.
The court said that you cannot discriminate against an employee for being transgender or gay without discrimination based on sex, giving a specific example. When two employees – one of each gender – are attracted to men, firing the male employee for this attraction and not the female means that you fired him for his sex, because if his sex had been female, he would not have been terminated.