It's illegal under existing civil rights law for employers to discriminate against someone on the basis of sexual orientation or gender identity. This comes through a new Supreme Court decision handed down Monday, June 15, that says that Title VII of the Civil Rights Code doesn't limit the interpretation of "sex" to just gender, as the Trump administration had argued.
Justice Neil Gorsuch wrote the opinion, which begins:
Sometimes small gestures can have unexpected consequences. Major initiatives practically guarantee them. In our time, few pieces of federal legislation rank in significance with the Civil Rights Act of 1964. There, in Title VII, Congress outlawed discrimination in the workplace on the basis of race, color, religion, sex, or national origin. Today, we must decide whether an employer can fire someone simply for being homosexual or transgender. The answer is clear. 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.
Employment attorney Daniel Schwartz of Shipman & Goodwin, LLP in Connecticut explains: "The court's decision settles years of confusing and often conflicting lower court decisions that made it difficult for employers to follow. The court's decision also affirms what many of the nation's largest employers had already adopted even without the Law: that discrimination against gay or transgender workers is wrong."
Impact on Your Business
As Schwartz says, many businesses already have non-discrimination as their policy, but if you don't, it's time to add it. Your business must treat sexual orientation and gender identity the same way you treat race, gender, and national origin: as characteristics that require equal treatment under the law.
You cannot fire someone for being gay, transitioning from one gender to another, or joining a gay softball league (the reason why one of the original plaintiffs was fired). You cannot refuse to hire someone because they are transgender or gay.
Update Your Discrimination and Equal Employment Information
If you have a client who says they don't wish to work with a trans person, you should handle that the same way you would treat a client saying they didn't want to work with a black person: by showing them the door. You cannot discriminate based on customer preference.
When you give discrimination training, you need to include the new ruling and consider it the same way you consider race, religion, and other protected characteristics.
While, hopefully, most businesses already do not discriminate on the basis of sexual orientation and gender identity, this is still an important day in LGBTQ rights. Employment attorney Jon Hyman of Meyers, Roman, Friedberg & Lewis in Ohio, says, "The historical import of this decision cannot be overstated. June 15 will be remembered as the day LGBTQ employees finally and unequivocally gained their civil rights at work, something that's been long overdue."
At the end of the opinion, Gorsuch summarizes the ruling with the following statement: "An employer who fires an individual merely for being gay or transgender defies the law."
This application of Title VII goes into effect immediately. Update your policies and your practices.