Title VII of the Civil Rights Act and Sexual Orientation and Gender Identity in the Workplace

Eric Updegraff | Hopkins & Huebner, P.C. | Des Moines Office

On June 15, 2020, the United States Supreme Court issued a landmark decision interpreting the provisions of Title VII of the Civil Rights Act of 1964.  At question were the issues of whether the Civil Rights Act’s prohibitions on sex or gender discrimination extended protection to sexual orientation and gender identity.  The Court found 6-3 that the terms of the Civil Rights Act did protect sexual orientation and gender identity in the workplace.

The Central Issues of the Case

The central issues in the case arose because the Civil Rights Act was written before movements to recognize and protect sexual orientation and gender identity.  It would be a vast understatement to state that attitudes toward sexual orientation and gender identity have changed significantly in the last sixty years.  The historical context of the Civil Rights Act meant that the original drafters did not explicitly include sexual orientation and gender identity.

This left a question of statutory interpretation for the United States Supreme Court in the absence of congressional action to explicitly state those categories were protected.  The plaintiffs in the present case needed to litigate those issues because Congress itself was unlikely to take any such action given its present membership.

Justice Roberts and Justice Gorsuch joined the liberal members of the Court to make the determination that employers cannot discriminate in the workplace based on sexual orientation and gender identity.  Justice Gorsuch reasoned that gender itself does play a role in sexual orientation and gender identity discrimination.  He explained that an employer that discriminates against a gay man is doing so based on the man’s gender, because the employer is not generally hostile toward individuals that are attracted to men.  Instead, the employer is hostile toward a man that it is attracted to another man.  After all, an employer that holds a discriminatory animus toward a gay man most likely does not take action against a woman that is attracted to a man.

The same reasoning applies to issues of gender identity.  An employer that discriminates against a person’s chosen gender identity is only doing so because of the employer’s perception of the employee’s original gender.  An employer with this sort of discriminatory attitude does not discriminate against an employee born female that also identifies as female.   Instead, the employer discriminates against individuals that change their gender identity.

How This Ruling Affects Iowa Employers

For employers in Iowa the new interpretation of the federal law does not change the employment landscape.  The Iowa Civil Rights Act already forbids an employer from discriminating against an employee based on sexual orientation and gender identity.  The Iowa Legislature included those categories explicitly in the text of the law on unfair employment practices.  The real effect of the provision will be to prohibit sexual orientation and gender identity discrimination for those portions of Iowa business that occur in other states.