On June 15, 2020, the Supreme Court of the United States (“Supreme Court”) issued a 6-3 decision providing that Title VII of the 1964 Civil Rights Act (“Title VII”), which prohibits discrimination on the basis of “sex,” applies to homosexual and transgender individuals.
The decision resolves three cases, all in which an employer fired a long-time employee shortly after the employee revealed that he or she is homosexual or transgender. In the first case, Gerald Bostock worked for Clayton County, Georgia, as a child welfare advocate. After a decade working for Clayton County, Mr. Bostock began participating in a gay recreational softball league, which resulted in influential members of the community allegedly making disparaging comments about Mr. Bostock’s sexual orientation and participation in the league. Soon thereafter, Mr. Bostock was fired for conduct “unbecoming” a county employee.
In the second case, Donald Zarda worked as a skydiving instructor at Altitude Express in New York. After several seasons with the company, Mr. Zarda mentioned that he was gay and, days later, was fired. In the final case, Aimee Stephens worked at R. G. & G. R. Harris Funeral Homes in Garden City, Michigan. When she was hired, Ms. Stephens presented as a male. But in her sixth year with the funeral home, Ms. Stephens wrote a letter to her employer explaining that she planned to “live and work full-time as a woman” after she returned from an upcoming vacation. The funeral home fired her before her vacation, telling her “this is not going to work out.”
Each employee brought suit under Title VII alleging unlawful discrimination on the basis of sex. In Mr. Bostock’s case, the Eleventh Circuit held that the law does not prohibit employers from firing employees for being gay and affirmed the dismissal of his lawsuit as a matter of law. However, in Mr. Zarda’s case, the Second Circuit concluded that sexual orientation discrimination violates Title VII and allowed his case to proceed. Likewise, in Ms. Stephens’s case, the Sixth Circuit held that Title VII bars employers from firing employees because of their transgender status.
The Supreme Court granted certiorari in all three cases to resolve the disagreement among the courts of appeals over the scope of Title VII’s protections for homosexual and transgender individuals.
In arriving at its decision, the Supreme Court majority looked to what it described as the ordinary public meaning of Title VII, specifically, its provision barring discrimination because of such individual’s “sex.” 42 U.S.C. §2000e–2(a)(1). Applying that meaning to the term “sex,” the Supreme Court determined that an employer violates Title VII when it intentionally fires an individual employee based on sexual orientation or sexual identity as those fall within the definition of sex. Specifically, the Supreme Court held that when an employer takes an adverse employment action against an individual for being homosexual or transgender, the employer is taking action against that person for traits or actions it would not have questioned in members of a different sex. Accordingly, sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids and what has always been prohibited by Title VII’s plain terms.
Further, the Court held, it does not matter if other factors besides the employee’s sex contributed to the decision, including nonprotected traits, or if the employer treated women as a group the same compared to men as a group or vice-versa.
The Supreme Court clarified that its ruling applies only to employment decisions like termination of employment. The Court made no attempt to address issues like sex-segregated bathrooms and locker rooms. Likewise, the Court provided that the decision does not address the intersection between religious liberty laws and Title VII’s express statutory exemption for religious organizations since such issues were not before the court.
Although almost half the states, including New York, New Jersey, and Connecticut, already have laws prohibiting employment discrimination on the basis of an employee’s sexual orientation and/or gender identity, the Supreme Court’s ruling extends this prohibition under federal law. As a result, employers can be liable for discrimination based on an employee’s sexual orientation or gender identity under Title VII in addition to any state or local law. Employees pursuing claims of this nature may now utilize the federal courts to seek to vindicate their claims.
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