On June 15, 2020, the United States Supreme Court issued a landmark 6-3 ruling in Bostock v. Clayton County, Georgia, holding that Title VII of the Civil Rights Act of 1964’s prohibition against discrimination on the basis of sex extends to discrimination on the basis of sexual orientation and gender identity.
Although many states or localities already include such a prohibition in their Title VII counterparts, many do not. This decision will therefore have a significant impact on a number of employers throughout the country, and may require operational and policy changes. Below we offer a short overview of the ruling and provide key practical and operational takeaways resulting from the decision.
The Supreme Court considered three cases in Bostock where the employer allegedly fired an employee on the basis of sexual orientation or gender identity: (1) Bostock v. Clayton County, Georgia, where the county terminated Gerald Bostock for conduct “unbecoming” a county employee shortly after he began participating in a gay recreational softball league; (2) Altitude Express, Inc., et al. v. Zarda et al., where Altitude Express terminated Donald Zarda days after he mentioned being gay; and (3) R.G. & G.R. Harris Funeral Homes, Inc. v. Equal Employment Opportunity Commission et al., where the funeral home terminated Aimee Stephens, who presented as a male when she was hired, after she informed her employer that she planned to live and work full-time as a woman. Each employee sued, alleging sex discrimination under Title VII of the Civil Rights Act of 1964, which prohibits discrimination on the basis of sex. The 11th Circuit held in Bostock that Title VII does not include a prohibition against discrimination on the basis of sexual orientation, and Mr. Bostock’s suit was dismissed. The Second Circuit in Zarda and the Sixth Circuit in R.G. & G.R. Harris Funeral Homes allowed the claims to move forward, thereby creating a circuit split.
Upholding the Second Circuit in Zarda and the Sixth Circuit in R.G. & G.R. Harris Funeral Homes, and overturning the Eleventh Circuit in Bostock, the Supreme Court ruled 6-3 that Title VII’s prohibition against discrimination on the basis of sex includes a prohibition against discrimination on the basis of sexual orientation and gender identity. Writing for the Court, Justice Gorsuch summarized the holding as follows: “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.”
What it means - key takeaway
This decision will not require significant changes for employers who already have LGBTQ-inclusive policies, whether because they operate in places in which sexual orientation and gender identity discrimination is already prohibited under state or local law, or because they have voluntarily elected to operate in a manner that aligns with those principles. For other employers, this ruling will require changes to EEO policies to expressly include sexual orientation and gender identity as categories of impermissible discrimination. Employers should revise policies relating to name changes and bathroom usage in the workplace, and to update or expand internal training to make clear to employees that discrimination on the basis of sexual orientation and gender identity is unlawful and will not be tolerated by the employer.
For transparency, Dentons prepared and filed an amicus brief with the Supreme Court in the Bostock case, advocating for the position that was ultimately adopted by the Court. For more information about the Dentons team’s role in the Bostock case and the Dentons commitment to inclusiveness and to the eradication of discrimination against LGBTQ employees, please see the firm’s statement.