The U.S. Supreme Court handed gay advocates a pivotal win Monday, ruling that a federal law banning gender bias protects workers from discrimination based on sexual orientation and identity.
In California, state law expressly prohibits discrimination against any person because of his or her sexual orientation, which means actual or perceived “heterosexuality, homosexuality, and bisexuality.” See the California Fair Employment and Housing Act (“FEHA”); Government Code §§ 12900, et seq, 12926(o), (s), 12940(a)-(d).
In addition, the FEHA prohibits discrimination on the basis of “sex,” defined to include a person’s “gender”; and “gender” includes a person’s “gender identity” and “gender expression”—meaning a person’s “gender-related appearance and behavior whether or not stereotypically associated with the person’s assigned sex at birth.” Government Code § 12926(r)(2).
Prior to incorporating sexual orientation discrimination into the FEHA, California still recognized sexual orientation as a prohibited form of discrimination. In making clear its stance, California has identified the arbitrary exclusion of employment of qualified people based on sexual orientation by public utilities as discriminatory since the seventies. See Gay Law Students Assn. v. Pac. Tel. & Tel. Co., (1979) 24 Cal. 3d 458.
Federal law is starkly different and multiple US District Courts and Circuits have come to separate conclusions on whether the Civil Rights Acts protects gay workers. Justice Neil Gorsuch sided with the court’s liberal members in finding that the ban on discrimination “because of … sex” in Title VII of the Civil Rights Act [Title VII of the Civil Rights Act of 1964 (“Title VII”) (42 USC § 2000e et seq.)] covers sexual orientation and gender identity, penning the 6-3 ruling in favor of the gay and transgender workers in a trio of linked cases.
“Because discrimination on the basis of homosexuality or transgender status requires an employer to intentionally treat individual employees differently because of their sex, an employer who intentionally penalizes an employee for being homosexual or transgender also violates Title VII,” the court held.
Justices Gorsuch, John Roberts, Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan comprised the majority. Justices Samuel Alito and Brett Kavanaugh dissented, with Justice Clarence Thomas joining Justice Alito.
For the first several decades following Title VII’s passage in 1964, every court to consider the question said the law’s ban on sex-based bias does not cover gay workers, and most said it does not protect transgender workers, at least not directly. However, with time and acceptance, federal regulators and judges interpret Title VII to cover the LGBTQ community.
Title VII and FEHA provides protections similar to Title VII. Workers claiming employment discrimination usually have the choice of suing under either Title VII or the FEHA and suing in either federal court or state court. FEHA usually offers employees greater protection and relief such as unlimited compensatory and punitive damages, where only limited damages are allowed under Title VII.
The Seventh Circuit revived a lesbian professor’s unfair firing suit in a landmark en banc decision in 2017. The following year, the full Second Circuit said the estate of a gay skydiving instructor had a viable claim against Altitude Express Inc. Also in 2018, a Sixth Circuit panel revived the U.S. EEOC’s allegations that R.G. & G.R. Harris Funeral Homes unlawfully fired funeral director Aimee Stephens after she announced her gender transition.
Both the funeral home and the skydiving company appealed their losses to the U.S. Supreme Court along with gay former Georgia municipal worker Gerald Bostock, who lost his unfair firing case at the Eleventh Circuit Court of Appeals. The court granted certiorari in April 2019 and heard the combined cases in October 2019. The federal government, which had argued for Stephens at the Sixth Circuit, argued against the workers at the Supreme Court.
Justice Gorsuch tied the Title VII’s plain meaning Monday, saying an employer violates the law “when it intentionally fires an individual employee based in part on sex.” Because sex is a component of a worker’s gender identity or sexual orientation, an employer that fires a worker on one of these bases “necessarily intentionally discriminate[s] against that individual in part
because of sex,” he said.
Justice Alito called the majority’s opinion “preposterous,” saying Congress “indisputably did not” intend to bar employers from discriminating against gay and transgender workers when it passed Title VII as part of the Civil Rights Act of 1964. Justice Kavanaugh took a similar tack, saying “our role as judges is to interpret and follow the law as written” while acknowledging the “weighty” policy arguments for broadening the law. “As written, Title VII does not prohibit employment discrimination because of sexual orientation,” he said.
The United States Supreme Court cases are Altitude Express v. Zarda, case number 17-1623; Bostock v. Clayton County, Georgia, case number 17-1618; and R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission et al., case number 18-107; all were before the U.S. Supreme Court. All can be found at
This post was written with research from Madison J Rolapp [email protected] a second-year law student from the University of California, Irvine School of Law. If you have any questions about discrimination in the workplace based on sexual orientation or identity please contact Richard E. Quintilone II Esq.[email protected] or 949-458-9675.
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