On June 15, 2020, the U.S. Supreme Court issued a landmark decision in Bostock v. Clayton County, Georgia, No. 17-1618 (U.S. Jun. 15, 2020), which held that an employer who fires an individual merely for being gay or transgender violates Title VII of the Civil Rights Act of 1964. In a 6-3 opinion authored by Justice Neil Gorsuch, the Supreme Court states that the “answer is clear” as to whether terminating an employee based on his or her sexual orientation falls within the definition of sex discrimination because “[s]ex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”
Justice Gorsuch notes that the three cases being reviewed by the Court involved the same basic facts: “an employer fired a long-time employee shortly after the employee revealed that he or she is homosexual or transgender – and allegedly for no reason other than the employee’s homosexuality or transgender status.” Gerald Bostock worked for Clayton County, Georgia, as a child welfare advocate. After a decade of service, he was terminated due to his participation in a recreational gay softball league. Donald Zarda was a seasoned skydiving instructor at Altitude Express in New York. Shortly after mentioning he was gay to a customer, he was fired. Finally, Aimee Stephens worked at R.G. & G.R. Harris Funeral Homes in Michigan. When she was hired, she presented as a male. However, in her sixth year at the company, she wrote a letter to her employer explaining that she planned to “live and work full-time as a woman.” The funeral home fired her shortly thereafter. Sadly, both Donald Zarda and Aimee Stephens passed away during the course of the proceedings.
The Court’s decision is very direct, stating that “these cases involve no more than the straight-forward application of legal terms with plain and settled meanings. For an employer to discriminate against employees for being homosexual or transgender, the employer must intentionally discriminate against individual men and women in part because of sex. That has always been prohibited by Title VII’s plain terms – and that ‘should be the end of the analysis.’” The Court reasons that “if changing the employee’s sex would have yielded a different choice by the employer – a statutory violation has occurred.” Justice Gorsuch goes on to say: “The statute’s message for our cases is equally simple and momentous: An individual’s homosexuality or transgender status is not relevant to employment decisions.” He closes by saying that no ambiguity exists in this case: Title VII protects LGBTQ+ workers from being discriminated against.
While the Court does say that homosexuality and transgender status are distinct concepts from sex, it makes it clear that discrimination based on homosexuality or transgender status necessarily entails discrimination based on sex, as the first cannot happen without the second. After summarizing both sides’ arguments on the matter, Justice Gorsuch touches upon the lessons that these cases have taught: (1) it is irrelevant what an employer might call its discriminatory practice, how others might label it, or what else might motivate it; (2) an individual’s sex need not be the sole or primary cause of the employer’s adverse action; and (3) an employer cannot escape liability by demonstrating that it treats males and females comparably as groups.
For many employers, today’s decision will reinforce their current policies prohibiting discrimination in employment on the basis of sexual orientation and gender identity. Others will need to amend their policies immediately to include sexual orientation and gender identity as classes protected from discrimination in their workplace. All employers would be best served by taking the opportunity to educate and train their employees on their anti-discrimination and harassment policies and to focus some of that training on LGBTQ+ bias.