Karen Michael

Karen Michael is an attorney with Richmond-based KarenMichael PLC.

Earlier this month, the U.S. Supreme Court ruled in a landmark 6-3 decision that the rights of LGBTQ people are protected from employment discrimination.

The case involved three separate lawsuits that were consolidated into one. Two of the cases arose from the termination of two male gay employees working for separate companies and the third arose following the termination of a transgender female.

It tested whether federal law protections apply to lesbian, gay, bisexual and transgender workers.

All three sued for employment discrimination under Title VII of the Civil Rights Act of 1964, which makes it an unlawful employment practice for an employer, which has 15 or more workers, to:

  • fail, refuse to hire or to discharge any individual that discriminates against any individual with respect to his or her compensation, terms, conditions or privileges of employment because of such individual’s race, color, religion, sex, or national origin; or
  • to limit, segregate or classify employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his or her status as an employee, because of such individual’s race, color, religion, sex, or national origin.

The law further defines “because of sex” to include “on the basis of sex” which includes but is not limited to on the basis of “pregnancy, childbirth, or related medical conditions; and women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes…”

The question before the Supreme Court was whether Congress also intended the term “because of sex” to include protecting individuals based on their sexual orientation and/or gender identity.

The Supreme Court had previously ruled in 1989 that discrimination based on gender stereotyping was protected under Title VII of the Civil Rights Act.

Writing for the majority was Neil Gorsuch, who was President Donald Trump’s first nominee for the high court.

Gorsuch wrote: “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.”

“Those who adopted the Civil Rights Act might not have anticipated their work would lead to this particular result. Likely, they weren’t thinking about many of the Act’s consequences that have become apparent over the years, including its prohibition against discrimination on the basis of motherhood or its ban on the sexual harassment of male employees. But the limits of the drafters’ imagination supply no reason to ignore the law’s demands. 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.”

Based on this ruling, employers, including private, public and nonprofit, cannot discriminate against individuals based on these protected characteristics if they employ 15 or more workers.

Effective July 1, a new Virginia law also will prohibit discrimination in public and private employment and housing, among other things.

For more than a decade, Congress had made multiple failed attempts to pass legislation that would have guaranteed these rights.

Employers should have already been providing these protections to applicants and employees through their policies and practices.

Employers should articulate expectations that all workers be treated consistent with the law, including protecting members of the LGBTQ community from discrimination and harassment. This expectation should be shared to employees from management through policy, training and practice.

Karen Michael is an attorney with Richmond-based KarenMichael PLC. She can be reached at kmichael@karenmichaelconsulting.com.

Load comments

You must be a full digital subscriber to read this article. You must be a digital subscriber to view this article.

Your sports-only digital subscription does not include access to this section.

SALE!
Only $3 for 3 Months
Unlimited Digital Access

  • Unlimited access to every article, video and piece of online content
  • Exclusive, locally-focused reporting
  • News delivered straight to your inbox via e-newsletters
  • Includes digital delivery of daily e-edition via email
SALE!
Only $3 for 3 Months
Unlimited Digital Access

  • Unlimited access to every article, video and piece of online content
  • Exclusive, locally-focused reporting
  • News delivered straight to your inbox via e-newsletters
  • Includes digital delivery of daily e-edition via email