SCOTUS: Title VII Protects LGBTQ Employees

By: Storrs Downey & Jessica Jackler

In a long-awaited landmark decision, the U.S. Supreme Court issued its ruling on June 15, holding that Title VII protects LGBTQ workers against discrimination. Justice Neil Gorsuch wrote the majority opinion in the 6-3 ruling, which decided three employment discrimination cases involving the reach of Title VII to discriminate on the basis of sexual orientation and gender identity:

1. G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission et al., case number 18-107 (considering transgender discrimination under Title VII);
2. Altitude Express v. Zarda, case number 17-1623 (considering sexual orientation discrimination under Title VII); and
3. Bostock v. Clayton County, Georgia, case number 17-1618 (considering sexual orientation discrimination under Title VII).

This historical decision now provides uniform federal protections against sexual orientation and transgender discrimination. Since it was enacted in 1964, Title VII’s protection on the basis of “sex” referred to the biological distinctions between male and female and it was questionable whether it contemplated sexual orientation or transgender status.

Until now, only a select few courts have expanded its scope to these protections, including the 7^th Circuit in Hively v. Ivy Tech Community College of Ind., 853 F. 3d 339 (2017). Employers in this Circuit, including Illinois, Indiana and Wisconsin, have been barred since 2017 under federal law from discriminating against employees because of their sexual orientation and/or gender identity.

Furthermore, this ruling is consistent with the EEOC’s stance that sexual orientation and gender identity are protected characteristics under Title VII, which has been its position for several years.

Practice Tip: Although the 7^th Circuit previously ruled that Title VII protections apply to sexual orientation, the U.S. Supreme Court’s decision has now decided these issues on a national scale, making it the law of the land for all employers. Additionally, the Illinois Human Rights Act protects against discrimination based on sexual orientation, including gender identity.

Therefore, all Illinois employers with at least one employee (as of July 1) and those who have 15 or more employees covered by Title VII, are bound by this ruling, regardless of their location, and must not discriminate against employees or applicants because of their sexual orientation and/or gender identity. Employers should consider revising their EEO and anti-discrimination/harassment policies to include these protections if they have not done so already.

If you have any questions related to policies in your workplace which may impact your LGBTQ and/or transgender employees, please contact us.