On June 15, 2020, by a vote of 6-3, the U.S. Supreme Court held that an employer who fires an individual merely for being gay or transgender violates Title VII of the Civil Rights Act of 1964. Prior to the court’s historic decision in Bostock v. Clayton County, Georgia, fewer than half the states had statutes banning discrimination against LGBTQ+ employees. Through the Supreme Court’s groundbreaking interpretation of Title VII, those protections now stretch across the nation.
Title VII prohibits workplace discrimination “because of … sex.” For decades, courts held that “because of … sex” did not include sexual orientation or gender identity. In 1989, the Supreme Court held that discrimination based on sex-based stereotypes is prohibited by Title VII. Over the years, courts increasingly struggled to distinguish between claims based on sex-based stereotypes (which were actionable) and claims based on gender identity or sexual orientation (which were generally viewed as unactionable). Then in 2015, the Supreme Court recognized that the U.S. Constitution protects the right of same-sex couples to marry.
As reported in McGuireWoods legal alerts on April 6, 2017, and Feb. 28, 2018, since 2015, the U.S. Circuit Courts of Appeal have split on whether to expand the reading of “because of … sex” in Title VII to include discrimination on the basis of sexual orientation and gender identity. As the 7th Circuit observed in 2017, there existed “a paradoxical legal landscape in which a person can be married on Saturday and then fired on Monday for just that act.” To resolve this paradox, the Supreme Court granted certiorari on several of these appellate rulings and consolidated them.
The question of whether to expand Title VII’s protections to include gay and transgender employees came to the court in three different cases: Bostock v. Clayton County, Georgia (on appeal from the 11th Circuit); Altitude Express Inc. v. Zarda (on appeal from the 2nd Circuit); and R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission (on appeal from the 6th Circuit). In each of them, an employer allegedly fired a long-time employee simply for being gay or transgender.
Gerald Bostock participated in a gay recreational softball league. Clayton County fired him for conduct “unbecoming” a county employee. Donald Zarda mentioned being gay. Altitude Express fired him days later. Aimee Stephens, who presented as a male when she was hired, informed her employer that she planned to “live and work full-time as a woman.” R.G. & G.R. Harris Funeral Homes fired her for it.
Each employee sued. The 2nd Circuit held that Title VII prohibits employers from firing employees because they are gay, and the 6th Circuit held that Title VII prohibits employers from firing employees because they are transgender. These rulings permitted the claims of Mr. Zarda and Ms. Stephens to proceed. The 11th Circuit, holding that Title VII’s protections do not extend to sexual orientation, affirmed the dismissal of Bostock’s claim.
The U.S. Supreme Court affirmed the holdings of the 2nd and 6th Circuits and reversed the 11th Circuit in Bostock. Writing for the majority, Justice Neil Gorsuch explained that “[i]n Title VII, Congress outlawed discrimination in the workplace on the basis of race, color, religion, sex, or national origin.” He framed the question quite simply: “Today, we must decide whether an employer can fire someone simply for being homosexual or transgender.”
“The answer is clear,” he said. “Sex plays a necessary and undisguisable role in the decision” to fire an employee for being gay or transgender—“exactly what Title VII forbids.”
Acknowledging that the legislators who adopted the Civil Rights Act likely did not anticipate that the law would extend to protect gay and transgender employees, Justice Gorsuch nonetheless wrote that “the limits of the drafters’ imagination supply no reason to ignore the law’s demands … only the written word is the law, and all persons are entitled to its benefit.”
Chief Justice John Roberts and Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan joined Gorsuch’s decision.
Justice Samuel Alito filed a dissent joined by Justice Clarence Thomas. Justice Alito said there “is only one word for what the Court has done today: legislation.” He warned that the Supreme Court’s ruling would have far-reaching consequences to other federal laws that ban discrimination “because of sex,” including the Fair Housing Act and Title IX. Justice Brett Kavanaugh filed his own dissenting opinion explaining his view that the ordinary meaning of the phrase “discriminate because of sex” does not extend to discrimination based on sexual orientation.
What Lies Ahead for Employers?
Many employers already have workplace policies prohibiting discrimination based on sexual orientation, gender identity and transgender or transitioning status. Employers without such policies should update their anti-discrimination and harassment policies and training because federal law now prohibits discrimination based on sexual orientation and gender identity including transgender and transitioning status.
It is also worth noting that the Supreme Court’s ruling in Bostock may affect interpretations of other federal laws barring sex discrimination, including Title IX (federally funded educational programs), the Equal Pay Act, the Affordable Care Act, the Fair Housing Act and the Equal Credit Opportunity Act. It may also affect how employers should handle workplace bathrooms, locker rooms and dress codes. Although the Supreme Court expressly limited its ruling in Bostock to an “employer who fires an individual merely for being gay or transgender” and left other “questions for future cases,” it is likely that litigants will be emboldened to test the bounds of other sex discrimination laws.