Supreme Court Rules LGBTQ Individuals Protected by Title VII

Posted by Howard Hoffman | Jun 15, 2020

On June 15, 2020, the Supreme Court made a landmark ruling in the realm of employment discrimination law.  At issue in Bostock v. Clayton County, Georgia,[1] was whether or not an employer could fire an employee simply for being homosexual or transgender.  In a 6-3 decision authored by Justice Gorsuch, the Supreme Court has determined that firing an individual for being gay or transgender violates Title VII of the Civil Rights Act of 1964, which is commonly known as simply Title VII.

 Title VII prohibits workplace discrimination on the basis of race, color, religion, sex, or natural origin.  Absent from the list of protected categories is sexual orientation or gender identity.  Over the decades, various states, such as Maryland or the District of Columbia[2], have implemented local laws, providing workplace protections to LGBTQ employees.  However, many other states did not, and in the absence of state law protections, there was no clear Federal protection under Title VII, and the US Courts of Appeal were split on the issue.

 Gerald Bostock was an extraordinary and national award-winning child welfare advocate who was fired for joining a gay recreational softball league.  When he brought suit, the US Court of Appeals for the Eleventh Circuit ruled that Title VII does not prohibit employer for terminating an employee for being gay.  On the other hand, in the case of Donald Zarda, a skydiving instructor that was fired after mentioning he was gay, and Aimee Stephens, a transgender woman who was fired after informing her employer that she would be living and working as a woman, the Second and Sixth Circuits, respectively, ultimately decided that discrimination based on sexual orientation or gender identity violated Title VII's prohibition against discrimination “because of sex.”

 Those who opposed expanding Title VII coverage leaned on the specific textual absence of sexual orientation or gender identity as protected characteristics under Title VII.  LGBTQ advocates, however, argued that Title VII's prohibition on discrimination on the basis of sex applied to sexual orientation and gender identity since discrimination against an employee on the basis of their sexual orientation or gender identity necessarily required a consideration of that employee's sex. 

 The Supreme Court ultimately found the advocates' line of reasoning the more persuasive path, and Justice Gorsuch's opinion provides a succinct thought experiment that highlights the logic underlying the Court's ruling:

 Consider, for example, an employer with two employees, both of whom are attracted to men. The two individuals are, to the employer's mind, materially identical in all respects, except that one is a man and the other a woman. If the employer fires the male employee for no reason other than the fact he is attracted to men, the employer discriminates against him for traits or actions it tolerates in his female colleague. Put differently, the employer intentionally singles out an employee to fire based in part on the employee's sex, and the affected employee's sex is a but-for cause of his discharge. Or take an employer who fires a transgender person who was identified as a male at birth but who now identifies as a female. If the employer retains an otherwise identical employee who was identified as female at birth, the employer intentionally penalizes a person identified as male at birth for traits or actions that it tolerates in an employee identified as female at birth. Again, the individual employee's sex plays an unmistakable and impermissible role in the discharge decision.

Because the Court's ruling on sexual orientation and gender identity discrimination is inextricably tied to Title VII's prohibition of sex discrimination, it should come as no surprise that the considerations that have surrounded sex discrimination cases, are also applicable to sexual orientation and gender identity discrimination cases.  For example, it is irrelevant what a discriminatory practice based on sexual orientation or gender identity may be called or labeled, or what else might motivate it.  Similarly, the employee's sex, sexual orientation, or gender identity does not need to be the sole or primary cause of the discriminatory practice to be prohibited.

 Today's ruling by the Court, by no means, signals an end to employment discrimination on the basis of sexual orientation or gender identity, just as the Civil Rights Act of 1964 did not bring an end to racial, religious, sex, or other forms of workplace discrimination.  And for many employers, this ruling will change little, if anything, because many State laws specifically prohibit discrimination based on sexual orientation.  Still, today's ruling brings consistency to an area of employment discrimination law and provides a much-needed avenue of relief for LGBTQ employees who have faced discrimination but did not have the luxury of State law protections.  An additional implication of this decision is that harassment based on sexual orientation is almost certainly covered under Title VII, as well.

[1]              Together with Altitude Express, Inc., et al. v. Zarda et al., as Co-Independent Executors of the Estate of Zarda, and R.G. & G.R. Harris Funeral Homes, Inc. v. Equal Employment Opportunity Commission et al..

[2]              On April 11, 2020, Governor Northam of Virginia signed the Virginia Values Act, which, among other things, prohibits employment discrimination on the basis of sexual orientation and gender identity.  However, the law will not go into effect until July 1, 2020.

About the Author

Howard Hoffman

Education University of Maryland School of Law, Baltimore, Maryland Juris Doctorate: Awarded May 1999, with honors (top 15% of graduating class) Law Journal: Associate Editor, The Business Lawyer (ABA Publication) (1998-1999) Recipient: Employment Law Prize Recipient: Joseph Bernstein Pr...

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