In an historic decision, the U.S. Supreme Court ruled that sexual orientation and gender identity/expression discrimination are prohibited under Title VII of the Civil Rights Act of 1964. In Bostock v. Clayton County, Georgia, Justice Neil Gorsuch authored the Court’s 6-3 majority opinion, holding that while Congress may not have intended this result, the statute’s clear text demands it.

The far-reaching impact of this decision is difficult to overstate. All employers, especially those that operate in jurisdictions that do not have state or local laws that prohibit sexual orientation or gender identity/expression discrimination, should immediately evaluate their policies and practices for compliance.

Background

Among other things, Title VII’s statutory text prohibits employment discrimination based on an employee’s “sex” but does not explicitly prohibit discrimination based on an employee’s sexual orientation or gender identity/expression. In an opinion consolidating three cases, the Court considered whether Title VII’s prohibition against sex discrimination incorporates sexual orientation and/or gender identity/expression discrimination.

Gerald Bostock, a Georgia county employee working in child welfare, was allegedly fired after his employer became aware that he played in a gay recreational softball league. Donald Zarda, a skydiving instructor, was allegedly fired days after disclosing he was gay. Aimee Stephens worked at a funeral home for several years, initially presenting as male; after informing her employer of her planned transition to present as female, her employment was terminated.

Each of the employees sued, alleging their employers discriminated against them based on their sex in violation of Title VII. Historically, 10 of the federal appellate courts had held by 2017 that Title VII did not prohibit sexual orientation and/or gender identity/expression discrimination. By 2019, when the Supreme Court agreed to hear these three cases, the appeals courts were split – with the Eleventh Circuit in Bostock holding that Title VII did not prohibit sexual orientation discrimination, while the Second Circuit in Zarda v. Altitude Express, Inc. and the Sixth Circuit in Stephens v. R.G. & G.R. Harris Funeral Homes, Inc. held that Title VII prohibited discrimination based on employees’ sexual orientation and gender identity/expression, respectively.

The Court’s Opinion

The Court’s opinion focused heavily on the statutory text of Title VII. Observing that Title VII incorporates a but-for causation standard, the Court held that employers cannot terminate an employee if the termination is based in part on the employee’s sex. The Court then turned to the question of whether sexual orientation and gender identity/expression are meaningfully distinct from “sex.”

The Court held that Title VII’s clear text answers this question in the negative. To that end, the Court held that it is “impossible” to discriminate against employees for being gay or transgender without necessarily taking the employee’s sex into account. The Court considered the example of two employees who are identical in every respect, including being attracted to men, except that one is a man and another a woman. Employers who fire the male employee for being attracted to men but not the female employee who is also attracted to men have “intentionally single[d] out an employee to fire based in part on the employee’s sex.”

Similarly, the Court considered the example of gender identity/expression. Employers who fire an employee who was assigned male at birth and who identifies as female, but who do not terminate an employee who was assigned female at birth and identifies as female have “intentionally penalize[d]” the former employee “for traits . . . that it tolerates” for the employee assigned female at birth. In this example, the Court noted that an employee’s sex “plays an unmistakable and impermissible role” in the termination decision.

In other words, the Court held that an employee’s sexual orientation and gender identity/expression are “inextricably bound up with sex” and that discriminating on these bases “requires an employer to intentionally treat individual employees differently because of their sex.” For this reason, the Court held that employers may not consider an employee’s sexual orientation and gender identity/expression in making employment decisions and that such characteristics are inherently within the term “sex” under Title VII.

To further illustrate the point, the Court considered the hypothetical of an employer including a check box on a job application for applicants to identify whether they were gay or transgender. To this point, the Court imagined an employer attempting to write out instructions for how applicants should determine whether to check such a box “without using the words man, woman, or sex (or some synonym).” Concluding that it was impossible to do so, the Court reiterated that “there is no way an employer can discriminate” on the basis of sexual orientation or gender identity/expression without necessarily discriminating based on sex.

The Court also considered the argument that Title VII is only concerned about ensuring employers do not treat women as a group less favorably than men as a group (or vice versa). According to this argument, Title VII would permit terminating employees due to their sexual orientation, as long as the termination applied equally to a male employee as it would to a female employee. The Court rejected this idea, noting that Title VII protects individual employees based on the individual’s protected characteristics, not groups of employees based on their categorical descriptions.

The Court also rejected the argument that Congress’s original understanding of the law should control. The Court held that the statutory language is both clear and “written in starkly broad terms.” As such, the Court noted that Congress’s intent in 1964 was irrelevant where a straightforward application of the text applied. And here, the text can only lead one to conclude that Title VII’s prohibition on workplace “discrimination on the basis of . . . sex” incorporates discrimination on the basis of sexual orientation and gender identity/expression.

While the parties had briefed the issue, the majority opinion did not address in detail the Court’s prior opinion in Price Waterhouse v. Hopkins or the issue of sex stereotyping against LGBTQ employees in the Title VII context. Nor did the Court specifically hold whether an employer’s religious beliefs would supersede Title VII in this context, deferring these issues for another day.

Takeaways for Employers

The Court’s opinion has significant, immediate effects. Employment discrimination based on an employee’s sexual orientation and gender identity/expression is now prohibited in all 50 states, irrespective of state or local law.

However, the effects are not limited to federal law. Many states have modeled their own anti-discrimination laws after Title VII, and many state courts freely apply Title VII precedent to their own state laws. It remains to be seen whether state courts will read this decision as applicable to state law, even where those state laws do not expressly protect sexual orientation or gender identity/expression.

Employers everywhere should immediately evaluate their policies, practices, and training procedures for compliance. This is particularly critical for employers who operate in states where state laws do not include employment protections for sexual orientation or gender identity/expression.

[View source.]