LEGALcurrents®

In a landmark decision, the U.S. Supreme Court in Bostock v. Clayton County, Georgia ruled that Title VII of the Civil Rights Act of 1964 (“Title VII”) protects lesbian, gay, and transgender employees from workplace discrimination. Title VII prohibits workplace discrimination on the basis of, among other things, an individual’s sex.  For many years, courts held “sex” discrimination did not include discrimination on the basis of sexual orientation and transgender status.  However, some more recent judicial decisions disagreed and concluded that firing a gay, lesbian or transgender employee could be illegal sex discrimination under Title VII.  The Supreme Court’s task was to resolve this conflict and decide this important issue.

The Court’s ruling resolved a trio of cases. Clayton County, Georgia, fired long-time county employee Gerald Bostock shortly after he began participating in a gay recreational softball league.  Altitude Express purportedly fired Donald Zarda days after he mentioned being gay.  And, R.G. & G.R. Harris Funeral Homes Inc. fired Aimee Stephens (who presented as a male when she was hired) after she informed the company that she planned to “live and work full-time as a woman.”

Writing for the Court, Justice Neil Gorsuch stated Title VII protections extend to homosexual and transgender workers: “An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex.  Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”  Justice Gorsuch was joined by Justices John Roberts, Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan.   

Justice Gorsuch further noted that an employer violates Title VII when its employment decision is based in any part on sex, even if the employer claims that it also relied on other (non-discriminatory) factors.  Justice Gorsuch explained: “An employer violates Title VII when it intentionally fires an individual employee based in part on sex.  It doesn’t matter if other factors besides the plaintiff’s sex contributed to the decision.  And it doesn’t matter if the employer treated women as a group the same when compared to men as a group.”  This last sentence may undercut the defense that an employer is an “equal opportunity discriminator” because it treats members of both sexes poorly.

In a scathing dissent, Justice Alito (joined by Justice Clarence Thomas) accused the Court of creating, rather than interpreting, legislation.  Justice Alito wrote: “There is only one word for what the Court has done today: legislation. . . The Court tries to convince readers that it is merely enforcing the terms of the statute, but that is preposterous.”  Justice Alito further pointed out that the Court ignored Congress’ 45-year history of refusing to add “sexual orientation” or “gender identity” to Title VII’s list of protected classes.  Instead, Justice Alito argued, the Court “[usurped] the constitutional authority of the other branches” by adding sexual orientation and gender identity as protected classes “under the guise of statutory interpretation.” 

Justice Brett Kavanaugh issued a separate dissent, noting “although both the House and the Senate have voted at different times to prohibit sexual orientation discrimination, the two Houses have not yet come together with the President to enact a bill into law.”  While he claims to “fully agree” with the proposition that gay and lesbian Americans should not be treated as outcasts or inferior, and that they “have advanced powerful policy arguments and can take pride in today’s result,” he still “believe[s] that it was Congress’s role, not this Court’s, to amend Title VII.”  

Although New York has prohibited sexual orientation discrimination for many years, less than half of the states do so.  To account for the Bostock decision, employers with 15 or more employees should ensure their anti-discrimination and anti-harassment policies include sexual orientation and transgender status as protected statuses. 

We will continue to monitor developments related to the Bostock decision.  Please contact any member of the firm’s Labor and Employment practice for more information on the Court’s decision, or any other labor or employment matters.


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