On Monday, June 15, 2020, the United States Supreme Court ruled in a landmark decision that the federal law barring discrimination in the workplace now protects gay and transgender workers.

Title VII of the Civil Rights Act of 1964 prohibits employment discrimination on the basis of race, color, national origin, religion, as well as on the basis of sex. In this week’s ruling, the U.S. Supreme Court held that Title VII precludes discrimination on the basis of sexual orientation and transgender identity.

The legal debate giving rise to the case focused on the definition of “sex” in Title VII and whether it could be viewed that discriminating against gay and transgender workers was inherently on the basis of their sex and, therefore, against the law.

The opinion of the Court was authored by conservative Justice Neil Gorsuch who expressed that what mattered was the text of the law – i.e., not only what does “sex” mean, but also what does Title VII say about it.

The Court stated, “It is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.” It went on to say that this is because “[a]n employer who fires an individual for being homosexual or transgender fires that person for traits or action it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision.”

While South Dakota law does not prohibit discrimination on the basis of sexual orientation or transgender status, Title VII now will prohibit such discrimination, and is applicable to employers with 15 or more employees.

Employers are well advised to review their policies and employee handbooks to include appropriate language to prohibit discrimination on the basis of sexual orientation, transgender status, or gender identity. In addition, employers should provide education and training to supervisors and managers in keeping with the new updates on prohibited discriminatory employment actions.

Please contact attorney Jennifer S. Frank at (605) 791-6450 for further information or questions.

Share This