By Eve Klein
Today SCOTUS ruled in a 6-3 decision addressing three pending similar cases that discrimination against an employee because of their sexual orientation or gender identity is indeed discrimination because of their sex prohibited by Title VII. The Court explained that at the very heart of a decision to deny employment to a person because they are gay is the employer’s reliance on the fact that they are attracted to the same gender as their assigned gender at birth. If a man is attracted to a man that is problematic but if that man was a woman attracted to a man then the employer would have no issue and no adverse employment action would result. As such, it is the individual’s assigned gender that is determinative or the “but for” cause of their discharge. The same analysis applies to gender identify. If an employer finds a female employee’s display of masculine traits objectionable but not a male employee’s display of those same traits objectionable, the basis of the objection comes down to the employee’s assigned gender.
The majority rejected key dissent arguments such as that the 1964 legislature did not intend Title VII to include sexual orientation and gender identity given the state of the times, the lack of explicit reference to these characteristics and repeated efforts over the years to amend Title VII to include them. However, the Court explained that none of these points are relevant on the ground that Title VII’s prohibition of discrimination against any individual because of their sex is broad, clear and unambiguous, requiring no legislative history, express inclusion or analysis of subsequent legislative actions.
The upshot of this decision will be felt more acutely in those states and localities that do not ban discrimination based on sexual orientation and sexual identity. Currently, slightly less than half of all states and approximately 400 jurisdictions prohibit discrimination based on sexual orientation and/or gender identity.