The United States Supreme Court has ruled that an employer who fires an individual merely for being gay or transgender defies Title VII of the Civil Rights Act of 1964 (Title VII).1 As a majority of states do not have laws affording private-sector employees protection against job discrimination based on sexual orientation and gender identity, the Court's landmark decision in Bostock v. Clayton Cnty., Ga., will have profound consequences for workplaces across the country for years to come.2
Case Background
The three companion cases before the Court in Bostock arose out of the Second, Sixth, and Eleventh Circuit Courts of Appeal. In each case, the employee alleged a violation of Title VII after the employer in question fired the employee shortly after the employee disclosed that he or she is homosexual or transgender.
Gerald Bostock worked as a child welfare advocate for Clayton County, Georgia. Not long after he began participating in a gay recreational softball league, certain "influential members of the community" allegedly made disparaging comments about his sexual orientation, and his employer fired him for conduct "unbecoming" a county employee. The Eleventh Circuit found that Title VII did not prohibit employers from firing employees for being gay and affirmed the lower court's dismissal of his claim as a matter of law.
Donald Zarda, now deceased, worked as a skydiving instructor in New York. After several seasons with his company, he mentioned that he was gay and his employer fired him days later. While the lower court permitted his claim under New York state law to proceed, the court rejected his gender stereotyping discrimination claim under Title VII. The Second Circuit, en banc, reversed the lower court and concluded that sexual orientation discrimination does indeed violate Title VII and allowed his case to proceed.
Aimee Stephens, now deceased, worked at a Michigan funeral home. When first employed, she presented as a male. She subsequently advised her employer that she planned to "live and work full-time as a woman" after she returned from an upcoming vacation. The funeral home fired her before she left, telling her, "this is not going to work out." The Sixth Circuit held that Title VII bars employers from firing employees because of their transgender status.
Notably, the employers at issue did not dispute that they fired the plaintiffs for being homosexual or transgender. They argued, however, that even intentional discrimination against employees based on their homosexuality or transgender status did not violate Title VII's ban on "sex" discrimination.
The Court's Decision
In Bostock, the Court sought "to resolve at last the disagreement among the courts of appeals over the scope of Title VII's protections for homosexual and transgender persons."
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 with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin."3 The statute generally applies to private employers with 15 or more employees.4
In a 6-3 decision, the Court delivered a resounding victory to gay and transgender employees, as well as their advocates.5 As stated by the Court:
Today, we must decide whether an employer can fire someone simply for being homosexual or transgender. The answer is clear. 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.
In reaching its conclusion, the Court stated that "[t]he only question before [it] is whether an employer who fires someone simply for being homosexual or transgender has discharged or otherwise discriminated against that individual 'because of such individual's sex.'" In answering that question in the affirmative, it explained: "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," and that "homosexuality and transgender status are inextricably bound up with sex." "So long as the plaintiff's sex was one but-for cause of that decision, that is enough to trigger the law."
In sweeping aside arguments to the contrary (including arguments that in making sex discrimination illegal, Congress did not intend to protect homosexual or transgender employees or applicants), the Court concluded that in enacting 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, and it was obligated to give that language an "ordinary public meaning." Any issues regarding bathroom or locker room use, free speech rights, accommodation of religious beliefs, the impact on college sports, etc., the Court said, were not before it in this case, and would have to be resolved in the future.
Bostock's Implications: What Should Employers Do Now?
As noted, Bostock's consequences will be immediate for some. For example, in those jurisdictions where Title VII was not interpreted in a way that protected gay or transgender employees or applicants, and state or local law also afforded no protection, covered employers are now operating on a different legal landscape and employers must respond immediately to ensure that they comply with Title VII. In numerous other states, including California, New York, and Washington, where state laws prohibiting employment discrimination on the basis of sexual orientation and gender identity exist, Bostock's impact may, in the short term, be less obvious, but will almost certainly bring about changes in the workplace.
Following Bostock, all employers should:
- Confirm understanding as to whether they are covered by Title VII today, or expect to be in the near future. In light of the 15-employee threshold, small employers, in particular, should determine whether workers are correctly classified as employees or independent contractors.
- Review and revise, as necessary, company handbooks, policies (e.g., anti-discrimination/harassment), and codes of conduct to ensure that the company has addressed employment protections for sexual orientation and gender identity in a manner that informs and educates relevant constituencies and mitigates risk.
- Review training programs and materials to ensure compliance with Title VII and other relevant state or local laws prohibiting sexual orientation and gender identity discrimination in the workplace.
- Ensure that human resources or other personnel understand the prohibition against sexual orientation and gender identity discrimination, and know how to respond to allegations of such discrimination and/or harassment, including competently investigating such complaints.
- Understand that the prohibition against discrimination because of sexual orientation and gender identity applies to hiring practices and decisions as well.
- Consider, as appropriate, steps to avoid discriminating on the basis of sexual orientation or gender identity during layoffs, furloughs, or RIFs.
- Understand and be prepared to answer new questions that may, following Bostock, arise in the workplace regarding employee or applicant use of bathrooms, free speech concerns, religious discrimination, etc.
[1] Bostock v. Clayton Cnty.,
No. 17-1618, 17-1623 and 18-107, 2020 U.S. LEXIS 3252 (U.S. June 15, 2020).
[2] According to one source, prior to the Court’s ruling, 22 states and the District of Columbia prohibit discrimination based on sexual orientation and gender identity, one state prohibits discrimination based on sexual orientation only, and eight others have similar protections for public employees. Accordingly, 19 states afford employees no protection against such discrimination (unless available at a local level).
[3] 42 U. S. C. §2000e–2(a)(1) (emphasis added).
[4] Generally, Title VII applies to private employers that have 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year. The term “employee” means “an individual employed by an employer.”
[5] In Court filings, over 200 large corporations reportedly supported the plaintiffs’ position that Title VII provides protection to homosexual and transgender persons.
