Q. I understand that the United States Supreme Court came out with a new decision extending Title VII protections. What are the details?

A.  Delivering a historic victory for the LGBTQ community, the U.S. Supreme Court issued a 6-3 landmark decision on June 15, ruling that Title VII of the Civil Rights Act of 1964 prohibits terminating an employee based on the employee’s gender identity or sexual orientation. In Bostock v. Clayton County, Georgia, 590 U.S. _____ (2020), the Court held “that employers are prohibited from firing employees on the basis of homosexuality or transgender status.” Justice Neil Gorsuch wrote the majority opinion, in which Chief Justice Roberts and the four liberal justices joined. Justice Alito wrote a 107-page dissent, in which Justice Thomas joined, and Justice Kavanaugh dissented separately.

Case Summary

The matter came before the Court in the form of three consolidated cases: Bostock v. Clayton County, Georgia, 17-1618; Altitude Express, Inc. v. Zarda, 17-1623; and R.G. & G.R. Harris Funeral Homes, Inc. v. EEOC, 18-107. In each case, an employer allegedly fired a longtime employee because of that employee’s sexual orientation or gender identity. Bostock worked for Clayton County, Georgia as a child welfare advocate. His employment was terminated for conduct “unbecoming” a county employee shortly after he began participating in a gay recreational softball league. Donald Zarda worked as a skydiving instructor, and his employment was terminated days after he mentioned to a customer that he was gay. Aimee Stephens presented as male when she began working at the R.G. & G.R. Harris Funeral Home. Six years after her employment began, she informed her employer that she intended to live and work full-time as a woman when she returned from vacation. The funeral home fired her before she left on vacation. Although the underlying cases were procedurally disparate and resulted in different outcomes, the Court granted certiorari to resolve the circuit split as to whether Title VII included protections for homosexual and transgender persons.

Title VII outlaws employment discrimination on the basis of race, color, religion, sex and national origin. In Bostock, the Court held that Title VII’s prohibition of employment discrimination “because of” sex encompasses discrimination against homosexual and transgender employees. Writing for the Court, Justice Gorsuch framed the question in clear terms in the opinion’s opening paragraph: “Today, we must decide whether an employer can fire someone simply for being homosexual or transgender.” The majority answered this question in the negative, writing, “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 majority held that a plain reading of the text of Title VII shows that an employer’s discrimination against an employee because of that employee’s sex violates the statute. Relying on dictionaries from the early 1960s, the employers in the cases before the Court argued that the term “sex” should be interpreted to mean only “status as either male or female [as] determined by reproductive biology.” The Court disagreed with that restrictive definition and reasoned that Title VII inherently protects LGBTQ individuals from discrimination because “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.” The Court explained that if two individuals who were both attracted to men were otherwise identical in all respects except that one was a man and the other was a woman, an employer who fires the man because he is attracted to men “discriminates against him for traits or actions it tolerates in his female colleague.” As the Court articulated, by “discriminating against homosexuals, the employer intentionally penalizes men for being attracted to men and women for being attracted to women. By discriminating against transgender persons, the employer unavoidably discriminates against persons with one sex identified at birth and another today.”

The Court offered a number of examples to illustrate that when an employer discriminates on the grounds of LGBTQ status, that employer “inescapably intends to rely on sex in its decisionmaking.” One such compelling example read:  “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.”

The employers also argued that when Congress passed Title VII in 1964, few would have expected it to prohibit discrimination against homosexual and transgender persons. Rejecting that argument, the majority explained:  “At bottom, these cases involve no more than the straightforward application of legal terms with plain and settled meanings. For an employer to discriminate against employees for being homosexual or transgender, the employer must intentionally discriminate against individual men and women in part because of sex. That has always been prohibited by Title VII’s plain terms—and that ‘should be the end of the analysis.’”

Relying on the unambiguous statutory language, the majority concluded that “[i]n Title VII, Congress adopted broad language mak­ing it illegal for an employer to rely on an employee’s sex when deciding to fire that employee. We do not hesitate to recognize today a necessary consequence of that legislative choice: An employer who fires an individual merely for be­ing gay or transgender defies the law.”

The majority opinion left the door open for employers to challenge the application of Title VII to sexual orientation and gender identity under the Religious Freedom Restoration Act of 1993 if employers believe that such an application violates their religious convictions, an issue that was not before the Court.

Justice Alito’s scathing dissent criticized the Court for legislating from the bench, arguing that Congress “indisputably” did not ban discrimination because of sexual orientation or gender identity when it enacted Title VII in 1964. Justice Kavanaugh’s separate dissent argued that it is the duty of Congress to amend Title VII, not the courts.

Tips for Employers

While the cases before the Court involved discriminatory termination claims and the Court therefore focused its analysis on whether Title VII prohibits firing employees because of their sexual orientation or transgender status, the same analysis likely will apply to all Title VII claims alleging discrimination based on sexual orientation or gender identity — including claims alleging failure to hire/promote and hostile environment claims. Many state and local statutes already expressly prohibit employers from discriminating against employees based on their sexual orientation or gender identity. The Bostock decision now extends these prohibitions to the federal level. In light of Bostock, employers covered by Title VII that have nondiscrimination policies that do not cover sexual orientation and gender identity should revise those policies immediately. In addition, employers should take the following steps in response to the Bostock decision:

  • conduct nondiscrimination training and anti-harassment training for employees and supervisors that covers discrimination and harassment based on LGBTQ status
  • be cognizant of whether a reduction in force or particular employment policy may have an adverse impact on LGBTQ individuals
  • consider accommodations for employees in the process of a gender transition
  • respect the pronouns preferred by an individual employee
  • address inappropriate behaviors targeted at an individual’s sexual orientation or gender identity in the same way as inappropriate behavior based on race, age, disability, religion and other protected traits.