In a seminal 6–3 decision for LGBTQ rights on Monday, June 15, 2020, the Supreme Court of the United States held plainly: An employer who fires an individual merely for being gay or transgender defies the law. The Opinion by Justice Gorsuch, issued more than eight months after the Supreme Court heard oral arguments in the three consolidated cases at the center of this action, provides that an employer who intentionally treats a person worse because of sex—such as by firing the person for being homosexual or transgender or for other attributes or actions it would tolerate in an individual of another sex—discriminates against that person in violation of Title VII of the Civil Rights Act of 1964. In so holding, SCOTUS decided the highly controversial issue of what traits constitute “sex” under Title VII, finding that both sexual orientation and transgender status are protected classes of “sex” under Title VII. The Court further reasoned that Title VII’s message is “simple and momentous: An individual’s homosexuality or transgender status is not relevant to employment decisions . . . because it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”
In rendering this decision, the Court affirmed the judgments of the Second and Sixth Circuits in Altitude Express, Inc. v. Zarda and Harris Funeral Homes v. EEOC, respectively, which held that anti-gay discrimination is sex discrimination. The third case out of the Eleventh Circuit, Bostock v. Clayton County, was reversed and remanded for further proceedings consistent with the Court’s opinion. The Court’s June 15, 2020, decision addresses each of these cases in turn.
Background
Altitude Express, Inc. v. Zarda was originally brought by Donald Zarda, a skydiving instructor who alleged he was fired in violation of Title VII and New York state law by his former employer, Altitude Express, on the basis of his sexual orientation after he told a customer he was gay. The company maintained that Zarda’s behavior in inappropriately touching a customer during a base jump led to his termination, not his sexual orientation. After losing at the trial level (the district court found that Title VII does not protect against discrimination based on sexual orientation), Zarda appealed his case to the Second Circuit in 2015. The Second Circuit initially affirmed the trial court’s decision. However, the court decided to reconsider the case upon Plaintiff-Appellants’ request for an en banc review in May 2017. Relying largely on recent Supreme Court holdings, the Second Circuit ultimately broke from its own precedent and held that anti-gay discrimination in the workplace is prohibited under Title VII. Altitude Express appealed to the Supreme Court.
Similarly, Bostock v. Clayton County was brought by Gerald Bostock, a gay man who worked for Clayton County, Georgia as a child welfare services coordinator. In 2013, Bostock was terminated allegedly for “conduct unbecoming of its employees” shortly after he received criticism for participating in a gay recreational softball league. Bostock subsequently filed a charge of discrimination with the EEOC, followed by a lawsuit against the county in 2016 alleging discrimination based on sexual orientation under Title VII. The district court dismissed the lawsuit for failure to state a claim, finding that Bostock’s Title VII did not prohibit discrimination on the basis of sexual orientation. Bostock appealed, and the Eleventh Circuit affirmed the district court’s decision. Bostock then appealed to the Supreme Court.
Aimee Stephens, the plaintiff in Harris Funeral Homes v. EEOC, is a transgender female who worked as a funeral director at R.G. and G.R. Harris Funeral Homes. Stephens was fired in 2013 after informing the funeral home’s owner that she was a transgender woman and the EEOC subsequently sued on her behalf. The Sixth Circuit ultimately ruled that Stephens’ employer engaged in unlawful sex discrimination when it fired her because discrimination against a transgender employee is discrimination on the basis of non-conformity with stereotypical gender norms and thus constitutes discrimination on the basis of sex under Title VII. The employer appealed to the Supreme Court.
On October 8, 2019, SCOTUS heard oral arguments in all three of these cases.
Employers Take Heed
In light of the Supreme Court’s June 15 decision, employers who do not already prohibit discrimination on the basis of sexual orientation, gender identity or gender expression will need to amend their existing discrimination policies to include LGBTQ status as a protected class and train their employees on the updated policies and implications of non-compliance. Employers who conduct business in states or localities that already prohibited discrimination on the basis of sexual orientation, gender identity or gender expression may not need to take as many – or any – further actions to comply with the Supreme Court’s decision, but should continue to monitor this issue at the federal, state and local levels as it continues to unfold.
Significantly, it is no longer legal for an employer to intentionally fire an employee based in part on sex. It does not matter if other factors besides the individual’s sex contributed to the decision or if the employer treated a particular group of employees the same when compared to another group of employees as a whole. If the employer intentionally relies in part on an individual employee’s sex when deciding to discharge the employee, a statutory violation has occurred. As my colleagues previously predicted, the Supreme Court also recognized gender stereotyping as a form of sex discrimination based on the theory that when an employer treats an employee differently for failing to conform with gender-based expectations or norms, the employer is engaging in sex based discrimination in violation of Title VII.
At a minimum, all employers should be aware of the three important “lessons” learned by SCOTUS in this matter as cited in the June 15 Opinion.
- It is irrelevant what an employer calls its discriminatory practice, how others label a practice or what else might motivate such a practice. When an employer fires an employee for being homosexual or transgender, it “necessarily and intentionally discriminates against that individual in part because of sex,” which is all that Title VII requires to establish liability.
- The employee’s sex need not be the sole or primary cause of the employer’s adverse action. It has no significance if another factor—such as the sex the employee is attracted to or presents as—might also be at work, or even play a more important role in the employer’s decision.
- An employer cannot escape liability by demonstrating that it treats males and females comparably as groups. An employer who intentionally fires an individual homosexual or transgender employee in part because of that individual’s sex violates the law even if the employer is willing to subject all male and female homosexual or transgender employees to the same rule.
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