The question: does Title VII’s prohibition of employment discrimination “because of sex” extend to gay, lesbian, and transgender employees? On June 15, 2020 the Supreme Court answered that question with a resounding “YES” in a 6 to 3 majority opinion authored by Justice Neil Gorsuch.
The issue came before the Court from three Circuit Courts of Appeals decisions that I previously discussed in a prior blog post (https://dsvlaw.com/the-supreme-court-will-examine-sexual-orientation-and-gender-identity-discrimination-claims-in-its-2019-2020-term/). In Bostock v. Clayton County Georgia, a long-time county employee was fired from his job shortly after he began to publicly participate in a gay recreational softball league. In Altitude Express v. Zarda, a sky-diving instructor was terminated after he revealed to a client that he was gay. In RG and GR Funeral Homes v. EEOC, funeral director Aime Stephens was fired after she advised her employer that she was transitioning from male to female and would begin presenting at work as a female. All sued their employers, and the Circuit Courts of Appeal reached conflicting conclusions as to whether the adverse employment actions they each suffered because of their sexual orientation or gender identity violated Title VII.
Title VII of the Civil Rights Act of 1964, as amended, provides that employers may not “fail or refuse to hire or…discharge any individual, or otherwise…discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” The question presented to the Supreme Court was whether terminating employment on the basis of sexual orientation or gender identity was “because of sex” and thus forbidden by Title VII. The arguments on both sides of the controversy centered on what exactly the broad term “sex” encompasses in the statute. On the one hand, the employers argued that if Congress had wanted to bar discrimination based on sexual orientation or transgender status, they could have done so but did not, and that two subsequent Congressional attempts to amend the statute to expressly enumerate this specific category of protected persons had failed. On the other hand, the employees argued that the broad term of “sex” took in both sexual orientation and transgender status since it was not specifically excluded. In the majority opinion authored by Justice Gorsuch (joined by Chief Justice Roberts and Justices Ginsburg, Breyer, Sotomayor, and Kagan), the Court noted “[t]he statute’s message for our cases is equally simple and momentous: an individual’s homosexuality or transgenderness 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.” (emphasis added). As Justice Gorsuch concluded, “[i]n 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 employee merely for being gay or transgender defies the law.”
Two dissents accompanied the opinion–the first, a sharply worded dissent authored by Justice Alito and joined by Justice Thomas, asserting that the majority opinion was not based on a strict textual analysis of statute but rather was an attempt by the majority to legislate from the bench. The second dissent, authored by Justice Kavanaugh was less abrasive, but equally critical of the majority’s reliance on a strict interpretation of the word “sex,” suggesting that a variety of other “contextual” means should have been used to determine exactly what Congress meant when it used the word “sex” when the statute was enacted.
What does all of this mean for employers? Many employers have already adopted policies and procedures to prohibit discrimination (including harassment) on the basis of an individual’s sexual orientation or transgender status—and in this respect employers have actually been ahead of the courts in recognizing the importance of these issues to their workforces. For those employers who have not taken these steps, the time is now. All employers should immediately evaluate their policies and procedures and should take affirmative steps to educate their managers and supervisors on the impact of this decision. Policies and procedures–including procedures for reporting harassment–should be updated so that employees have notice that they have a means to report. If your anti-harassment training does not already include sexual orientation and transgender status–it is time to refresh that training as well.
If you have questions about labor and employment issues, contact your DSV attorney or Melanie M. Dunajeski at email@example.com.
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