Landmark ruling could expand protections for other classes of employees

The U.S. Supreme Court's decision to extend anti-discrimination protections to gay and transgender employees under the Civil Rights Act rests on an argument that could provide expanded protections for other classes of employees, as well, attorneys say.

The court's recognition Monday that incidents of discrimination don't always stem entirely - or even primarily - from protected characteristics like sex has broad implications, said Elizabeth L. Riles, managing partner at Bohbot & Riles, PC and chair of the California Employment Lawyers Association.

"The way that causation is discussed makes it clear that... if the protected characteristics play a role, it's still discrimination," Riles said. This logic could expand what counts as a discrimination case, and "could be useful in race cases and national origin cases," she added.

"When an employer fires an employee for being homosexual or transgender, it necessarily intentionally discriminates against that individual in part because of sex," wrote Justice Neil Gorsuch, who authored Monday's 6-3 ruling. "The plaintiff's sex need not be the sole or primary cause of the employer's adverse action."

Gorsuch was joined by Chief Justice John Roberts and Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan. Justices Clarence Thomas, Samuel Alito, and Brett Kavanaugh dissented.

Monday's ruling brings Title VII protections for LGBTQ workers in line with the kinds of anti-discrimination regulations that already exist in California, Riles said -- even if it doesn't explicitly add homosexuality and transgender status to the statute's list of protected characteristics.

In his dissenting opinion, Alito said Monday's ruling would allow transgender women better access to gendered bathrooms locker rooms, women's sports, gender-segregated college housing, and healthcare. The ruling would also have consequences for freedom of speech, constitutional claims, and the employment practices of religious organizations, the justice added.

Supreme Court Justice Brett Kavanaugh, pictured in 2019, wrote an extensive dissent arguing that expanding protections for LGBTQ workers should be left to Congress. (New York Times News Service)

"The position that the Court now adopts will threaten freedom of religion, freedom of speech, and personal privacy and safety. No one should think that the Court's decision represents an unalloyed victory for individual liberty," Alito wrote. Alito and Kavanaugh both noted that multiple bills attempting to add sexual orientation or gender identity to Title VII's list of protected characteristics have been introduced to Congress over several decades, but no bill has passed both Houses. The justices additionally accused the ruling of overreaching by essentially amending Title VII instead of merely interpreting it.

Felicia Medina, a civil rights attorney at Medina Orthwein LLP, said despite the absence of these characteristics from Title VII's list, Monday's ruling was a major step forward for LGBTQ employees -- even if it rests on a restrictive definition of sex oriented around biology.

"Although there are other reasons to try to deemphasize everyone's fixation with anatomical organs and sex, and concerns about bathrooms and things like that, this was sound legal reasoning to say that sexual orientation and gender identity are inextricably linked to biological sex," Medina said, adding in her view, the ruling makes it unnecessary for legislators to continue pushing to add sexual orientation and gender identity to Title VII's list of protected characteristics. "The correct interpretation is that transgender and gay and lesbian employees are protected," she said of the statute. The ruling is especially significant given the Trump administration's finalization of a regulation last week that narrowed the definition of sex discrimination under the Affordable Care Act, so transgender people were excluded, said Sam M. Schwartz-Fenwick, who heads the LGBT Affinity Group at Seyfarth Shaw LLP.

The dissenting opinions' argument that Title VII was not originally drafted to include LGBTQ rights has "been the official view taken by virtually every department in the Trump administration," Schwartz-Fenwick said.

After last weeks' healthcare announcement, "A number of organizations said they were going to file suits, saying they were going to enjoin that rule," Schwartz-Fenwick said. Monday's high court ruling "gives that argument renewed strength." Employers who haven't already adopted LGBTQ inclusive policies will likely start weighing the legal risks of not doing so, and the Equal Employment Opportunity Commission will likely be seeing more sexual orientation and gender identity discrimination complaints, he added.

"It's really for employers to keep the focus on... what the job actually entails, and if there's a performance issue, making sure that the performance issues are tied to business purposes and the actual position as opposed to any personal characteristics," said Megan Walker, who represents employers at Fisher Phillips, LLP.

"I'm overjoyed," Medina said, "That I will not have to turn down any clients who don't live in states that have more explicitly expansive anti-discrimination statutes."