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June 2020

BREAKING NEWS – Supreme Court Rules Title VII of Civil Rights Act of 1964 Bans Workplace Discrimination Based on Sexual Orientation & Gender Identity

In a just-issued majority decision that will doubtless be hailed as seminal in the battle for LGBTQ equality, the United States Supreme Court ruled that Title VII of the Civil Rights Act of 1964 bans workplace discrimination based on sexual orientation and gender identity. Bostock v. Clayton County, 590 U.S. ___ (2020). The Court finally made into law what proponents of equal rights always asserted: “Discrimination based on homosexuality or transgender status necessarily entails discrimination based on sex….”

The issue came to the court through three cases where employees had faced adverse employment actions because of their sexual orientation or gender identity. Donald Zarda, a skydiving instructor, and Gerald Bostock, a child-welfare-services coordinator for Clayton County, Georgia, filed lawsuits in federal court alleging that they were terminated because they were gay in violation of Title VII. The U.S. Court of Appeals for the 2nd Circuit agreed with Zarda that Title VII bars discrimination based on sexual orientation; the U.S. Court of Appeals for the 11th Circuit held against Bostock that it did not.

In the third lawsuit, originally brought by the Equal Employment Opportunity Commission on behalf of transgender employees after Aimee Stephens, a funeral director and embalmer, was terminated after she announced her gender transition. The Michigan federal district court agreed with the funeral home that Title VII does not protect transgender employees from discrimination, but the decision was reversed by the U.S. Court of Appeals for the 6th Circuit. The U.S. Supreme Court granted certiorari in April 2019 and heard the combined cases in October.

Justice Gorsuch, writing for the 6-3 majority, siding with the Chief Justice Roberts and Justices Ginsburg, Breyer, Sotomayor, and Kagan, held that when an employer fires an employee “for being homosexual or transgender,” that employer “fires that person for traits or actions it would not have questioned in members of a different sex.” That, the Supreme Court stated, is “exactly what Title VII forbids.” The Court held that while the drafters of the 1964 Civil Rights Act “might not have anticipated their work would lead to this particular result,” it is not unprecedented for the Court to apply Title VII to scenarios that were likely beyond the legislators’ original intentions.

In the opinion, Justice Gorsuch posited that sexual orientation and gender identity are inextricably linked to sex. “By discriminating against homosexuals, the employer intentionally penalizes men for being attracted to men and women for being attracted to women. By discriminating against transgender persons, the employer unavoidably discriminates against persons with one sex identified at birth and another today. Any way you slice it, the employer intentionally refuses to hire applicants in part because of the affected individuals’ sex, even if it never learns any applicant’s sex.”

Justice Gorsuch also described the Court’s reasoning as “straightforward,” a characterization seemingly belied by the opinion’s 33-page length. However, the Court’s opinion seems to have been drafted for posterity – a watershed refutation of arguments asserted by Justices Alito, Thomas, and Kavanaugh in dissent. The Court rejected the notion that Congress’s failure to speak directly to a specific case that falls within a broader statutory rule creates a tacit exception to that rule. To the contrary, when Congress chooses not to include any exceptions, courts apply the broad rule.

As the Court succinctly concluded:

“In Title VII, Congress adopted broad language making it illegal for an employer to rely on an employee’s sex when deciding to fire that employee. We do not hesitate to recognize today a necessary consequence of that legislative choice: An employer who fires an individual merely for being gay or transgender defies the law.”

Today’s decision ushers a new era in the LGBTQ community’s fight for equal rights and protections in employment. While certain states and municipalities have already passed laws explicitly protecting the rights of LGBTQ employees, the Supreme Court’s holding in Bostock universalizes these protections. Employers are advised to review their policies and employee handbooks to ensure that they are properly acknowledging an employee’s rights under the law, and to continue to ensure that they are taking necessary and affirmative precautions against discrimination and harassment in the workplace.

To read the full U.S. Supreme Court ruling, please click here

Sebastian P. Clarkin
Mercedes Colwin
Debra Ellwood Meppen
Marek Pienkos
Brandon D. Saxon