Today, the Supreme Court held that an employer violates Title VII when it intentionally fires an individual employee “based in part on sex” because “homosexuality and transgender status are inextricably bound up with sex.”
No less, intentional discrimination based on sex violates Title VII, even if it is intended only as a means to achieving the employer’s ultimate goal of discriminating against homosexual or transgender employees. There is simply no escaping the role intent plays here: Just as sex is necessarily a but-for cause when an employer discriminates against homosexual or transgender employees, an employer who discriminates on these grounds inescapably intends to rely on sex in its decisionmaking. Imagine an employer who has a policy of firing any employee known to be homosexual. The employer hosts an office holiday party and invites employees to bring their spouses. A model employee arrives and introduces a manager to Susan, the employee’s wife. Will that employee be fired? If the policy works as the employer intends, the answer depends entirely on whether the model employee is a man or a woman. To be sure, that employer’s ultimate goal might be to discriminate on the basis of sexual orientation. But to achieve that purpose the employer must, along the way, intentionally treat an employee worse based in part on that individual’s sex.
This makes rationale sense and is widely understood to be true.
So, this is a good ruling on that point, which largely affirms the position that the Equal Employment Opportunity Commission has held on that point.
But our federal employment attorneys hope that other language in the decision will help other individuals from all protected classes because the “based in part” rationale provides additional language that will hopefully guide and illuminate when discrimination is actionable when being based “in part” on the protected characteristic.
This decision just issued a few moments ago, and like any similar Supreme Court ruling, our federal employment attorneys will be reviewing it to develop more ways to fight for our clients, including revising our processes as appropriate.
If you are interested in a consultation with one of our attorneys for federal employees, please call us today.