On June 15, 2020, the United States Supreme Court issued a long-awaited decision, delivered by Justice Gorsuch, regarding protection for workers under Title VII based on sexual orientation or transgender status. The holding: Title VII clearly protects workers from discrimination based on sexual orientation or gender identity because “sex plays a necessary and undisguisable role” in employment decisions based on those characteristics.
The Supreme Court reviewed the case to resolve a growing circuit split regarding the application of Title VII’s prohibition on discrimination based on sex, as it relates to sexual orientation and gender identity. The lead case, Bostock v. Clayton County, Georgia, involved the termination of a long-time employee after the employer learned the employee participated in a gay recreational softball league. The Eleventh Circuit affirmed the dismissal of the employee’s discrimination claim, finding that Title VII does not, as a matter of law, prohibit employers from firing employees based on their sexual orientation. In contrast, the Second Circuit (Zarda v. Altitude Express – sexual orientation discrimination) and Sixth Circuit (R.G. & G.R. Funeral Homes, Inc. v. Equal Employment Opportunity Commission et al. – gender identity) allowed similar claims to proceed and held that employers who fire workers for being gay or transgender violate Title VII.
The Supreme Court’s ruling is clear: it is unlawful 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 the individual’s” sexual orientation or gender identity. In other words, based on a plain reading of Title VII’s statutory text from 1964, “[i]f [an] employer intentionally relies in part on an individual employee’s sex when deciding to discharge the employee . . . a statutory violation has occurred.” The Court reasoned that this result was “simple” and “momentous.” (citing Price Waterhouse v. Hopkins, 490 U. S. 228, 239 (1989) (plurality opinion)). “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.” The Court gave numerous examples in support of its holding, including firing a male worker simply because he was attracted to men while retaining female workers who are also attracted to men. In those examples, the Court found clear violations of Title VII’s prohibition on discrimination based on sex because the “individual employee’s sex plays an unmistakable and impermissible role in the discharge decision.”
The Supreme Court’s ruling does for federal discrimination laws what many states and local governments have done in the absence of express federal protections for homosexual and transgender workers. Indeed, a number of states—including California, Colorado, Connecticut, Delaware, District of Columbia, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, Nevada, New Hampshire, New Jersey, New Mexico, New York, Oregon, Rhode Island, Utah, Vermont, Washington and Wisconsin—have statutes prohibiting private employers from discriminating on the basis of sexual orientation and gender identity or expression. Additionally, several cities and municipalities have passed local ordinances prohibiting discrimination based on sexual orientation and gender identification. The EEOC has also taken the position that Title VII prohibits discrimination based on sexual orientation and gender identification. Title VII affords those same protections and the Supreme Court’s ruling on that was clear: “An employer who fires an individual merely for being gay or transgender defies the law.”
Justices Roberts, C.J., and Ginsburg, Breyer, Sotomayor, and Kagan, JJ joined Justice Gorsuch’s opinion. Justice Alito filed a dissenting opinion joined by Justice Thomas and Justice Kavanaugh filed a dissenting opinion.
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