Updated: Jun 17, 2020
"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."
On June 15, 2020, the United States Supreme Court issued an opinion in Bostock v. Clayton County (click here for the decision). The decision involves the consolidation of three separate lawsuits brought by individuals who were terminated because of their sexual orientation or gender identity:
1. Gerald Bostock, who began participating in a gay recreational softball league and was subsequently fired from his position as a Georgia county employee.
2. Donald Zarda, who mentioned to his employer that he is gay. Days later, he was fired.
3. Aimee Stephens, who disclosed in a letter to her employer that she intended to “live and work full-time as a woman” after returning from an upcoming vacation. Her employer fired her before she left.
All three individuals filed suit under Title VII of the Civil Rights Act of 1964, which prohibits discrimination within the employment context because of an individual’s race, color, religion, sex, or national origin. The Supreme Court granted certiorari to consider whether Title VII’s prohibition against discrimination because of “sex” includes discrimination because of sexual orientation or gender identity.
The Court held that the plain language of Title VII’s prohibition on sex-based discrimination covers discrimination based on sexual orientation and gender identity.
In reaching this conclusion, the Court explained that sexual orientation and gender identity are “inextricably bound up” with “sex” - “because to discriminate on these grounds requires an employer to intentionally treat individual employees differently because of their sex.” The Court explained accordingly:
"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. . . .
"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."
The Court further explained that "[i]t doesn't matter if other factors besides the plaintiff's sex contributed to decision." Taking an adverse employment action based upon an employee’s sexual orientation or gender identity may bring into play two causal factors: the individual’s sex and the sex to which the individual is attracted or with which the individual identifies. However, liability under Title VII does not hinge on this distinction. Rather, the Court held, “[i]f an employer would not have discharged an employee but for that individual’s sex,” Title VII is triggered.
The Court also made clear that employers that purport to take adverse action against all gay and transgender employees, regardless of their sex, do not avoid liability. Title VII “makes each instance of discrimination against an individual employee because of that individual’s sex an independent violation of Title VII.” Instead of reducing liability, the Court explained that an employer with such a policy “doubles rather than eliminates Title VII liability.” Specifically, “[f]or 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.”
The Court noted, however, that its decision was limited only to the context of adverse actions within employment under Title VII, declining to address other laws or bathrooms, locker rooms, or "anything else of the kind."
Impact: This decision affirms that LGBT individuals across the nation now have legal recourse on the federal level if they believe they have experienced an adverse employment action because of their sexual orientation or gender identity.
Justice Gorsuch authored the opinion of the Court which was joined by Chief Justice Roberts, and Justices Breyer, Ginsburg, Kagan, and Sotomayor. Justice Alito filed a dissenting opinion, joined by Justice Thomas. Justice Kavanaugh also filed a dissenting opinion.