A pair of decisions by the U.S. Supreme Court this week extending discrimination protections applies to federal employees because they are covered by the law at issue, Title VII of the Civil Rights Act, in addition to similar discrimination protections under civil service law.
In a pair of decisions, Altitude Express Inc. v. Zarda and Bostock v. Clayton County, Georgia, the high court held that claims of discrimination based on sexual orientation or gender identity may be brought as claims of sex discrimination under that law.
“An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids,” the court ruled in a 6-3 decision.
In addition, the Civil Service Reform Act of 1978 makes discrimination based on sexual orientation or gender identity a prohibited personnel practice in the federal workplace. One provision parallels Title VII’s prohibitions against workplace discrimination based on sex. The second prohibits agencies from discriminating against employees based on conduct that does not adversely affect job performance. That prohibition has long been interprted as barring discrimination based on sexual orientation and gender identity.
Further, Executive Order 13807 of 1998 set a uniform policy for the federal government to prohibit discrimination based on sexual orientation. Executive Order 13672 of 2014 clarified that those policies apply to gender identity.
However, the high court ruling is seen as providing firmer ground for asserting discrimination on those grounds.