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By James W. Carroll, Jr., Esquire and Noah R. Jordan, Esquire
Rothman Gordon
Pittsburgh, Pennsylvania

On June 15, 2020 the United States Supreme Court held, in a landmark decision, that the prohibition against workplace discrimination on the basis of sex under Title VII of the Civil Rights Act of 1964 protects employees from discrimination based on their sexual orientation and gender identity.   This issue had created a split among the Federal Courts throughout the country, with some courts reaching the same ruling as the Supreme Court ultimately did, while others had ruled that Title VII does not provide those protections.  Some jurisdictions previously had specifically provided these protections legislatively in local ordinances, including Allegheny County and the City of Pittsburgh.  Until the Supreme Court issued its ruling, however, there was no state or federal protection in Pennsylvania for LGBTQ employees.

The decision was issued in response to three separate cases. In Bostock v. Clayton County, Georgia a child welfare services coordinator employed by Clayton County alleged that he was fired because he is gay.  In a similar case, Altitude Express v. Zarda, a skydiving instructor also filed suit claiming that his termination was because of his sexual orientation.  The third case covered by the decision, R.G. & G.R. Harris Funeral Homes v. EEOC, was brought by a transgender woman who was fired after informing her employer that she would be transitioning.

The majority opinion, authored by Justice Neil Gorsuch, was joined by Chief Justice John Roberts and Associate Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan.  The majority held that “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 undistinguishable role in the decision, exactly what Title VII forbids.”  Thus, the Court made clear that discrimination against employees based on their sexual orientation or gender identity are forms of unlawful sex discrimination.

The decision was a surprise to most Court watchers, given the thus far reliably conservative rulings of Justice Gorsuch since he was appointed to replace Justice Antonin Scalia and the fact that Chief Justice Roberts previously authored a dissenting opinion in the 2015 Obergefell decision, in which the Court held that same-sex couples have the right to marry under the Due Process and the Equal Protection clauses of the Fourteenth Amendment.

Justice Samuel Alito wrote a dissenting opinion joined by Justice Clarence Thomas in which he rejected the Court’s decision as an act of legislation, noting that Congress has failed, including as recently as last year, to pass a law clarifying Title VII in the same manner as the majority.  Justice Brett Kavanaugh wrote a separate dissenting opinion in which he similarly suggested that in issuing its decision, the Court was making or amending law, as opposed to interpreting it.  He rejected the majority’s conclusion that to “discriminate because of sex” extends to discriminating based on sexual orientation or gender identity.

If you have any questions about these issues, or believe that you have been discriminated against in the workplace because of your sex, sexual orientation, or gender identity, please contact one of Rothman Gordon’s Employment Lawyers directly, contact us online, or call (412) 338-1100.