On June 15, the U.S. Supreme Court ruled that Title VII of the Civil Rights Act of 1964 protects gay and transgender workers from workplace discrimination. Prior to this decision, Title VII prohibited discrimination based on race, color, national origin, religion, and sex. The decision adds sexual orientation and gender identity to the classifications protected by the law.
This change affects states differently, as some states prohibit sexual orientation discrimination but not gender identity discrimination. This affords employees the option of bringing lawsuits to federal court where available damages may be broader. States that only have sexual orientation discrimination prohibitions will now be covered for gender identity discrimination under this new set of protections. For states with no protections, the employer must meet the 15 or more employee rule for federal protection coverage to be activated.
Beyond firing employees for being gay or transgender, there are implications that are important for future interpretations of said law.
Title VII prohibits discrimination in the “terms and conditions” of employment, which extends protections beyond hiring and firing to training, promotions, and leaves of absence, among other employment matters. Since Title VII also prohibits harassment of folks based on gender identity and sexual orientation, retaliation against employees exercising rights protected by Title VII is also prohibited.
For employers, the National Law Review recommends that, in response to the change in this law, employers should review policies for compliance, and amend equal opportunity, sexual harassment, and retaliation policies to make sure they are up to date. Employers should also implement training for managers to ensure they understand and are sensitive to the effects of this change to the law.
Beyond the immediate repercussions of this decision, several legal scholars have mentioned a deeper implication of this decision.
Professor Ruthann Robson brings to light that every opinion issued in this decision raises the First Amendment free exercise of religion specter. She mentions that the Court’s majority states that “worries about how Title VII intersects with religious liberties are nothing new, since they predate the statute’s passage.” While none of the employers involved in this decision represent that compliance will infringe upon their own religious liberties, Alito’s dissent includes his worry that this adopted position will threaten freedom of religion, freedom of speech, and personal privacy and safety. He goes on to mention that this decision does not represent an unalloyed victory for individual liberty.
Alum Shirley Lin ’10 mentioned this implication as well in her note in the Human Rights at Home Blog. She wrote that the decision “reserved for another day the application of religion objections brought by both religious employers, exceptions for ministerial employees, and claims under the Religious Freedom Restoration Act, as none of those issues were raised on appeal.”
Andy Izenson, President of the New York Chapter of the National Lawyers Guild, surfaced this concern as well. They remarked that the decision says that Title VII prohibits employment discrimination based on an employee’s gay or transgender identity for any reason that is not framed in religious terms.
Andy continues: “In Gorsuch’s majority opinion, he carefully leaves the door open for his interpretation of Title VII as applying to discrimination based on gay or transgender status to be undercut by a pretextual religious freedom claim. Referencing the Religious Freedom Restoration Act of 1993 (RFRA), which gives individuals (and, once expanded by case law, corporations) the right to evade the requirements of other statutes by claiming that their free exercise of religion is being substantially burdened, Gorsuch calls RFRA a “kind of super statute [which] displac[es] the normal operation of other federal laws [and] might supersede Title VII’s commands in appropriate cases.
Gorsuch points out that no RFRA claims were brought before the Supreme Court in the Bostock/Harris/Zarda cases, but signals unsubtly that he expects and welcomes such a case in the future. This means that it may be reasonable to expect that at some point soon, a case will come before Gorsuch in which an employer argues that complying with the Bostock/Harris/Zarda interpretation of Title VII by not discriminating against employees on the basis of their gay or transgender status is an unacceptable infringement on its religious freedom. This follows the blueprint that Hobby Lobby laid out regarding its religious objections to following the sections of the Affordable Care Act which mandated employee insurance plans that covered contraception.”
The legal scholars quoted raised this implication as a future concern, so thinking ahead is important in future applications of this ruling.
Where does this leave present and future lawyers in the coming years in light of this decision? Alum Stephen Bergstein ’93 has words of wisdom to share with fellow legal minds.
“Remember, this decision does not mean Gorsuch and Roberts are suddenly on our side. This is an uphill battle. No one ever thinks that the case is going to end up in the Supreme Court, but some do – and this one did. The law is against you, and you fight to change the law. You’ll be in a position to do this someday when you’re practicing, and you can’t do it every time, but you take a chance because you believe in it. You want to do it, and you think maybe there’s a way, and it’s worth it. The next time somebody comes to you with what may seem to be a long shot, but you believe in the issue, think about taking it because this case would not have been brought if somebody didn’t have the guts to do it, and most lawyers would have said no.”