A new 6-3 Supreme Court ruling protects the rights of workers from employment discrimination solely based upon “sex” under the Title VII of the 1964 Civil Rights Act. The opinion includes protection for “homosexual” and “transgender” people, both men and women, finding, in all cases, that discrimination against LGBTQ individuals falls within the definition of “sex” under the Act. But there is a major religious exemption coming, discussed below.
Donald Trump appointee Justice Neil Gorsuch penned the opinion. He was joined by all four Democratic appointees, Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan, and also by Republican-appointed Chief Justice John Roberts, Jr. Neil Gorsuch explains:
Today, we must decide whether an employer can fire someone simply for being homosexual or transgender. The answer is clear. An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.
At bottom, these cases involve no more than the straight-forward application of legal terms with plain and settled meanings. For an employer to discriminate against employees for being homosexual or transgender, the employer must intentionally discriminate against individual men and women in part because of sex. That has always been prohibited by Title VII’s plain terms–and that “should be the end of the analysis.” (citation omitted)
Employers argue that LGBTQ workers do not suffer discrimination on behalf of sex because (1) they treat men and women the same, and (2) they discriminate for other reasons, namely being transgender or homosexual. Neil Gorsuch rejects these arguments:
An employer violates Title VII when it intentionally fires an individual employee based in part on sex. It doesn’t matter if other factors besides the plaintiff ‘s sex contributed to the decision. And it doesn’t matter if the employer treated women as a group the same when compared to men as a group. If the employer intentionally relies in part on an individual employee’s sex when deciding to discharge the employee–put differently, if changing the employee’s sex would have yielded a different choice by the employer–a statutory violation has occurred.
A long 33-page opinion boils down apparently to a simple rule: that employers cannot discriminate against workers on behalf of “sex,” which applies to homosexual and transgender people under existing law. The other Justices, Samuel Alito joined by Clarence Thomas and Brett Kavanaugh alone, published dissertations of dissent bringing the length of the entire case document to 172 pages.
RELIGIOUS EXCEPTION TO DISCRIMINATE
There was no religious claim in the case, but Neil Gorsuch foreshadows a coming religious exception:
Separately, the employers fear that complying with Title VII’s requirement in cases like ours may require some employers to violate their religious convictions… Congress included an express statutory exception for religious organizations. §2000e–1(a). This Court has also recognized that the First Amendment can bar the application of employment discrimination laws “to claims concerning the employment relationship between a religious institution and its ministers.” And Congress has gone a step further yet in the Religious Freedom Restoration Act of 1993 (RFRA). That statute prohibits the federal government from substantially burdening a person’s exercise of religion unless it demonstrates that doing so both furthers a compelling governmental interest and represents the least restrictive means of furthering that interest. Because RFRA operates as a kind of super statute, displacing the normal operation of other federal laws, it might supersede Title VII’s commands in appropriate cases. (Citations omitted, bold added.)
In fact, one employer lost the religious claim at the lower court, but oddly, refused to appeal it to the Supreme Court:
Harris Funeral Homes did unsuccessfully pursue a RFRA-based defense in the proceedings below [but] declined to seek review of that adverse decision, and no other religious liberty claim is now before us.
Apparently, the employer expected to win a complete, unqualified right to discriminate against LGBTQ people. The Court said otherwise. But this is not the end of the matter. There are cases coming out before the Supreme Court term ends in a few weeks that will address religious claims. Neil Gorsuch has already made it clear that he wants a religious exception so large that it could swallow the very rule he wrote today. See earlier articles and stay tuned: