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LGBT Workers Protected by Title VII of the Civil Rights Act of 1964

For the past 45 years, bills have been introduced in Congress to add “sexual orientation” to the list of protections in Title VII of the Civil Rights Act of 1964, and in recent years, bills have included “gender identity” as well. But to date, none have passed both the Senate and the House of Representatives. That is why the U.S. Supreme Court’s holding on June 15, 2020, making it illegal for employers to discriminate because of a person’s sexual orientation or gender identity under Title VII, is a landmark decision.

The U.S. Supreme Court consolidated three cases in its opinion on June 15, 2020.  Two of the cases concerned lawsuits by gay men who said they were fired because of their sexual orientation. (Bostick v. Clayton County Board of Commissioners, 894 F.3d 1335 (11th Cir. 2018); and, Zarda v. Altitude Express, Inc., 883 F.3d 100 (2nd Cir. 2018).) While the third case concerned gender identity. (Equal Employment Opportunity Commission v. R.G. &. G.R. Harris Funeral Homes, Inc., 884 F.3d 560 (6th Cir. 2018).) In each of these cases, an employer allegedly fired a long-time employee for being gay or transgender.

In an opinion on the consolidated cases, referred to as Bostick v. Clayton County, Georgia (— S.Ct. —-), the Supreme Court held that an employer violates Title VII – which makes it unlawful to discriminate against an individual “because of” the individual’s sex – by firing an individual for being gay or being a transgender person. Justice Gorsuch, writing for the 6-3 majority, stated that “homosexuality and transgender status are inextricably bound up with sex … because to discriminate on these grounds requires an employer to intentionally treat individual employees differently because of their sex.” The Court determined that a statutory violation occurs if an employer intentionally relies, even in part, on an individual employee’s sexual orientation or gender identity when deciding to discharge the employee.

Justice Alito filed a dissenting opinion with Justice Thomas joining. Justice Alito stated that the Court’s duty is to interpret statutory terms to mean what they conveyed to reasonable people at the time they were written, and the Court here, was merely updating an old statute so that it better reflects the current values of society.

Justice Kavanaugh filed his own dissenting opinion. Justice Kavanaugh stated that the responsibility to amend Title VII belongs to Congress and the President in the legislative process, not to the Court.

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