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Small Gestures and Unintended Consequences


In a 6-3 decision of the United States Supreme Court, the majority held that firing an employee for being gay or transgender violates Title VII of the Civil Rights Act of 1964. The opinion begins “sometimes small gestures can have unexpected consequences. Major initiatives practically guarantee them. In our time, few pieces of federal legislation rank in significance with the Civil Rights Act of 1964. Title VII makes it “unlawful . . . for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual . . . because of such individual’s … sex….”.

The decision is an easy read and makes clear that it was a no brainer for the majority members. In fact, the Court did not miss a chance to state that all that was necessary for the decision was a plain reading of the law—“At the bottom, these cases involve no more than the straight¬forward application of legal terms with plain and settled meanings… —and that ‘should be the end of the analysis.’”

Followers of the Supreme Court will note that Chief Justice John Roberts sided with the more liberal members of the Court, and Justices Alito, Thomas, and Kavanaugh dissented.

The opinion tracks the advice I have long given my clients: Discrimination on the basis of a person’s sexual orientation or gender identity is discrimination on the basis of sex and is illegal. Employers should review the decision, which is attached, update their policies, and discuss the case with supervisors.

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