In a much-anticipated decision, the United States Supreme Court last week ruled that Title VII of the United States Code (i.e, the federal statute that prohibits workplace discrimination based on sex) protects LGBTQIA workers. In short, this means employers who are subject to Title VII cannot refuse employment to someone based on gender or sexual orientation and likewise may not make adverse employment decisions (e.g., discipline, demotion, termination, etc.) based on those characteristics. The decision constitutes a major win for the LGBTQIA community. Notwithstanding the scope of this decision, it does not ensure workplace protections for all LGBTQIA workers.
As noted above, the decision rests on application of Title VII. By its terms, Title VII only applies to employers with 15 or more employees. Smaller businesses remain exempt from its strictures. So, unless there is a corresponding state law or local ordinance extending protection to employees of smaller businesses, those employees may still face workplace discrimination. (In Michigan, the Michigan Department of Civil Rights has interpreted the Elliott-Larsen Civil Rights Act to provide protection to LGBTQIA employees, but some legislators want to see the state legislature pass a definitive fix.)
Additionally, the dictates of Title VII cannot supersede Constitutional protections. Many religious organizations argue that same-sex marriages, for example, conflict with their sincerely held teachings and practices. Indeed, Title VII itself includes an exemption for religious bodies. The scope of that exemption continues to be ground for argument. It’s doubtful a court would force a Catholic Church to ordain and employ a transgender priest. But what about a transgender bookkeeper? Writing for the Court, Justice Gorsuch acknowledged, but deferred, such questions: “[H]ow these doctrines protecting religious liberty interact with Title VII are questions for future cases ….”
For many employers and workers alike, last week’s decision provided clarity to a hotly debated question. But for others, the proverbial jury is still out.
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