The Law @ Work

Supreme Court Says: Discrimination based on Sexual Orientation is Illegal under Federal Law

By Amelia J. Holstrom

In a landmark ruling, the Supreme Court of the United States held in Bostock v. Clayton County, Georgia that Title VII of the Civil Rights Act of 1964 prohibits discrimination based on sexual orientation and gender identity.  By way of background, Title VII prohibits employers from discriminating against their employees based on sex, among other things.  Because Title VII does not expressly list sexual orientation or gender identity as protected classes, federal courts had been left to grapple with whether discrimination on the basis of either of those characteristics is prohibited as a form of sex discrimination under Title VII.  That is, until yesterday.

The Court’s decision resolved three separate but similar cases pending before the Supreme Court: Bostock v. Clayton County, Georgia, Altitude Express Inc. v. Zarda, and R.G. & G.R. Harris Funeral Homes Inc. v. EEOC.  Each of the three cases began the same way: Gerald Bostock worked for Clayton County, Georgia and was terminated for conduct “unbecoming” of a county employee when he began to participate in a gay softball league.  Donald Zarda worked as a skydiving instructor at Altitude Express in New York.  After mentioning that he was gay, he was terminated just days later after several years of successful employment.  Aimee Stephens worked at R.G. & G.R. Harris Funeral Homes in Garden City, Michigan.  When hired, Ms. Stephens presented as a male.  After five years of employment,  Ms. Stephens informed her employer that, after she returned from an upcoming vacation, she planned to “live and work full-time as a woman”.  She was fired before she even left.

Bostock, Zarda, and Stephens each filed a lawsuit against their employer alleging that they were discriminated again on the basis of their sex in violation of Title VII.  Bostock’s case was dismissed by the Eleventh Circuit Court of Appeals, which held that sexual orientation discrimination is not a form of sex discrimination under Title VII.  Zarda and Stephens’ cases had a different outcome.  The Second and Sixth Circuit Courts of Appeals found that discrimination based on sexual orientation and gender identity, respectively, are prohibited under Title VII as forms of discrimination based on sex.  The Supreme Court of the United States agreed to review all three decisions to resolve the issue that had divided the Courts of Appeal: whether discrimination on the basis of sexual orientation and/or gender identity is prohibited under Title VII as a form of discrimination based on sex.

In the 6-3 majority opinion, which was authored by Justice Neil Gorsuch, the Court focused on the ordinary meaning of the language used by Congress in Title VII at the time the law was passed back in 1964. Specifically, Title VII states that it is “unlawful . . . for an employer 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 such individual’s . . . sex . . . .”  The Court noted that, in 1964, “sex” was defined as one’s “status as either male or female [as] determined by reproductive biology,” the statute uses the term “because of” that status to define when an action is discriminatory, and it focuses on discrimination against an individual, not a group.  Based on this language, the Court found that, under the plain meaning of Title VII, “[a] n individual’s homosexuality or transgender status is not relevant to employment decisions. That’s because it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”  The Court went on to explain its reasoning using two examples:

  • An employer has two employees – one female and one male – both of whom are attracted to men.  “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.”
  • An employer employs a transgender employee 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.”

The Court agreed that sexual orientation and gender identity are, in fact, distinct concepts from sex.  However, the Court determined that “discrimination based on homosexuality or transgender status necessarily entails discrimination based on sex; the first cannot happen without the second.” 

Massachusetts forbade employment discrimination on the basis of sexual orientation by all employers (both public and private) back in 1989, and was just the second state to do so, after Wisconsin.  Massachusetts added gender identity protections in 2012.  To this day, however, employees in many other states still do not have the same protections.  With this landmark decision, every employer that is covered by Title VII anywhere in the country will now be subject to the same prohibitions that have protected LGBTQ+ employees in Massachusetts for the last 8 years, and will be subject to civil penalties and civil liability under Title VII for discriminating against employees on the basis of their sexual orientation or gender identity.  This includes every private employer and every state or local government agency that has 15 or more employees.

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