On June 15, 2020, the U.S. Supreme Court ruled that it is illegal for an employer to fire someone because of their sexual orientation or gender identity. The court's 6-3 ruling extends the scope of Title VII of the Civil Rights Act, which bars discrimination on the basis of sex, race, color, national origin and religion, to include LGBTQ people. Justice Neil Gorsuch, who authored the majority's opinion, stated "an employer who fires an individual merely for being gay or transgender violates Title VII."
Title VII states, in relevant part, that:
It shall be an unlawful employment practice for an employer…to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions or privileges of employment, because of such individual's race, color, religion, sex or national origin.
Essentially, Justice Gorsuch determined that the text of Title VII is clear and that there was no need to interpret any legislative intent. “In Title VII, Congress adopted broad language making it illegal for an employer to rely on an employee’s sex when deciding to fire that employee,” Justice Gorsuch wrote for the majority. “We do not hesitate to recognize today a necessary consequence of that legislative choice: An employer who fires an individual merely for being gay or transgender defies the law.”
Justice Gorsuch is known to have a judicial philosophy of “textualism,” or when judges look only at the written words of a statute rather than the intent of the lawmakers who wrote them. Consistent with that philosophy, he said the text or words of the Civil Rights Act were clear. “When the express terms of a statute give us one answer and extratextual considerations suggest another, it’s no contest. Only the written word is the law, and all persons are entitled to its benefit.”
The Supreme Court’s ruling is a powerful one for the LGBTQ community and has implications for workplaces across the country. The court has clearly stated that an employer who fires an individual for being homosexual or transgender is in violation of the Civil Rights Act.
It is important to be cognizant of these laws. Some tips for ensuring the workplace is free from discrimination and harassment include, but are not limited to:
(1) Fostering respect for cultural and racial differences in the workplace;
(2) Being professional in conduct and speech;
(3) Refusal by management to participate in or condone discrimination and harassment and policies and procedures to discipline those who engage in improper conduct;
(4) Avoiding race-based or culturally offensive humor or pranks;
(5) Providing training on anti-discrimination principles and employer responsibilities under anti-discrimination laws, including Title VII; and
(6) Establishing a culture that encourages the reporting any incidents of inappropriate, discriminatory, harassing or abusive behavior, without fear of retaliation.
Tressler LLP recognizes that each business will have diverse needs, and we are available to help you develop a plan or policy, evaluate your business records and otherwise assist your business. Given the evolving nature of the law, it may be necessary to review and evaluate your employee handbooks or other workplace policies to ensure that they are compliant. There are many issues to consider, including parental leave & adoption policies, dress-code procedures, naming policies, recruiting & hiring policies and diversity & inclusion training to prevent liability.
I am available to assist on these issues and develop client-based goals to implement solutions for your business (even on a remote basis, if appropriate). Feel free to contact me for a complimentary consultation at firstname.lastname@example.org or by phone at (312) 627-4052.
ABOUT MATTHEW J. O'MALLEY
Matt O'Malley is a member of Tressler's Litigation Practice Group and Diversity & Inclusion Committee. He advises his clients on litigation strategies, skillfully representing them through all phases of litigation. Matt has a track record of success in both bench and jury trials. He focuses on the client’s resolution goals, whether that is achieved through trial, settlement conference, mediation or arbitration. Matt serves his clients in a variety of complex litigated and non-litigated matters, including actions for breach of contract, breach of fiduciary duty, indemnity and contribution, professional malpractice, personal injury, general corporate, LGBTQ issues, employment discrimination and civil rights violations.
ABOUT TRESSLER LLP
Tressler LLP is a national law firm headquartered in Chicago, with eight offices located in five states - California, Illinois, New Jersey, New York and Pennsylvania. Tressler attorneys are experienced counselors and advocates who appear in state and federal courts, and in governmental proceedings, throughout the United States. Many Tressler attorneys devote their practice to the representation of the insurance industry in coverage analysis and resolution, litigation, underwriting consultation, product development, claims management and reinsurance. Tressler attorneys also represent clients in commercial litigation, employment, local government law, corporate transactions and intellectual property law. Contact us to learn more.