In a landmark decision, the U.S. Supreme Court ruled that a worker’s sexual orientation or gender identity cannot be the basis of employment decisions. The Court’s June 15 opinion, delivered by Justice Gorsuch and joined by Justices Roberts, Ginsburg, Breyer, Sotomayor and Kagan, held that terminations and other adverse actions against an employee simply for being homosexual or transgender violate Title VII of the Civil Rights Act of 1964.
- Title VII of the Civil Rights Act of 1964, which bans sex discrimination, also prohibits discrimination against workers based on sexual orientation or gender identity.
- It is illegal for employers to use sex, sexual orientation or gender identity as a factor in making employment decisions, whether it is the only factor or in combination with other reasons.
- Gay and transgender workers now have legal recourse to pursue workplace discrimination claims even in states that do not already have protections in place.
Bostock v. Clayton County, Georgia, Certiorari to the United States Court of Appeals for the Eleventh Circuit No. 17–1618 (Argued Oct. 8, 2019; Decided June 15, 2020)
The matter before the Court was a consolidated appeal of three cases—Bostock v. Clayton County, Georgia; Altitude Express v. Zarda; and R.G. & G.R. Harris Funeral Homes v. EEOC—that shared a similar fact pattern. Plaintiffs were longtime employees who were fired after their employer discovered they were gay or transgender and who filed claims for discrimination based on sex under Title VII. The Court took up the appeal to resolve a split in the federal circuit courts as to whether Title VII applied. The Eleventh Circuit in Bostock held that Title VII does not prohibit employers from firing employees for being gay, while the Second Circuit, in Zarda, held that discrimination on the basis of sexual orientation in fact did violate the statute. And in Harris Funeral Homes, the Sixth Circuit likewise held that Title VII prohibits employers from firing transgender employees because of their status.
Title VII of the Civil Rights Act of 1964
Title VII is the portion of the Civil Rights Act of 1964 that protects an individual from workplace discrimination because of race, color, religion, sex or national origin. Specifically, Title VII prohibits employers from, among other things, refusing to hire or terminating an individual due to those factors, and it makes illegal any attempt to segregate, classify or limit the opportunities of any employees for reasons related to any of the above.
Discrimination on the Basis of Sex Includes Sexual Orientation or Gender Identity
In the recent decision, the Supreme Court specifically examined whether Title VII’s prohibition of employment discrimination on the basis of sex included sexual orientation or gender identity and concluded that, based on the ordinary public meaning of the language of the statute at the time it was enacted, it did. The Court assumed and the parties agreed that “sex” refers to “biological distinctions between male and female.” The inquiry didn’t depend on just the definition itself but also on what Title VII says about it. The statute prohibits employers from firing or otherwise discriminating against an employee “because of” sex—in other words, “by reason of” or “on account of.”
Based on the ordinary public meaning of the language of the statute at the time of its adoption, the Court concluded, “The statute’s message for our cases is equally simple and momentous: An individual’s homosexuality or transgender status is not relevant to employment decisions. That’s because it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”
Justice Gorsuch offered a number of illustrative examples, including this one: “Consider, for example, an employer with two employees, both of whom are attracted to men. The two individuals are, to the employer’s mind, materially identical in all respects, except that one is a man and the other a woman. If the employer fires the male employee for no reason other than the fact he is attracted to men, the employer discriminates against him for traits or actions it tolerates in his female colleague.”
Therefore, “[a]n 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 also found that Title VII forbids an employer from using sex as a factor in its decision to fire an employee even if there are legitimate factors present. “From the ordinary public meaning of the statute’s language at the time of the law’s adoption, a straightforward rule emerges: An employer violates Title VII when it intentionally fires an individual employee based in part on sex. It doesn’t matter if other factors besides the plaintiff ’s sex contributed to the decision,” Justice Gorsuch wrote.
After rejecting the employers’ arguments—textual, practical and policy-based—as both unconvincing and unsupported by the language of the statute, the Court concluded, “In 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.”
Going forward, LGBTQ workers now have Title VII as recourse for claims of discrimination based on sex. This is a significant development for employees in jurisdictions lacking a statutory scheme to protect workers from discrimination based upon sexual orientation or gender identity. And for employees in jurisdictions that already have these protections, federal law now provides a further remedy.