ALERT: Supreme Court Rules Employees Cannot Be Fired Because of Sexual Orientation or Gender Identity

In a decision issued today, the Supreme Court held that an employer cannot fire an employee simply because of their sexual orientation or gender identity. Bostock v. Clayton County, Georgia, 590 U.S. ____ (2020). This decision settles a split among lower courts about whether Title VII prohibits discrimination based on an employee’s gender identity or sexual orientation.

Background

Title VII of the Civil Rights Act of 1964 makes it “unlawful . . . for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual . . . because of such individual’s . . . sex.” Lower courts have come to differing decisions when considering whether this language prohibits discrimination based on an employee’s gender identity or sexual orientation.

Both the Second and the Seventh Courts of Appeal, for example, held that Title VII prohibits sexual orientation discrimination, reasoning that sexual orientation is "defined by one’s sex in relation to the sex of those to whom one is attracted, making it impossible for an employer to discriminate on the basis of sexual orientation without taking sex into account.” Zarda v. Altitude Express, 883 F.3d 100, 131 (2d Cir. 2018). Other federal courts of appeal, however, held that the because Title VII doesn’t explicitly include the words “sexual orientation” or “gender identity,” those classes are not not protected under the statute. These courts have also cited the fact that Congress repeatedly rejected bills to expand Title VII to prohibit discrimination based on sexual orientation. See, e.g., Simonton v. Runyon, 232 F.3d 33 (2d Cir. 2000).

Likewise, federal courts of appeal have split when considering whether Title VII prohibits discrimination based on gender identity. The Sixth Circuit held multiple times, most recently in 2018, that Title VII prohibits discrimination based on gender identity. In these decisions, the Sixth Circuit relied heavily on the Supreme Court’s decision in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). In Price Waterhouse, the Court held that Title VII prohibited discrimination based on sex stereotypes. For example, firing a woman for being “too masculine” would violate Title VII under Price Waterhouse. Based on Price Waterhouse, the Sixth Circuit held that discrimination against an employee because of their gender identity is a form of sex stereotyping in violation of Title VII. The Tenth Circuit, on the other hand, held that being transgender is not a protected class under Title VII. Etsitty v. Utah Transit Authority, 502 F.3d 1215 (10th Cir. 2007).

Additionally, the Equal Employment Opportunity Commission, the federal agency tasked with enforcing Title VII, previously stated that it will interpret and enforce Title VII to include discrimination based on gender identity or sexual orientation.

Against this backdrop, the Supreme Court granted certiorari to three cases and consolidated them to consider the question of whether Title VII prohibits an employer from firing an employee simply because of their sexual orientation or gender identity. In the first case, Defendant Clayton County, Georgia fired its employee, Gerald Bostock, after he joined a gay softball league. In the second case, Defendant Altitude Express fired employee Donald Zarda after Zarda mentioned he was gay. In the final case, Defendant R.G. & G.R. Harris Funeral Homes fired Aimee Stephens, who was assigned male at birth, after she told her employer she planned to “live and work full-time as a woman.” All three employees sued their employers, alleging they were terminated because of their sex in violation of Title VII.

The three consolidated cases wound their way through courts in different parts of the country, resulting in conflicting appellate decisions. The Eleventh Circuit Court of Appeals dismissed Mr. Bostock’s claim, holding that sexual orientation discrimination differs from discrimination “because of sex.” The Second Circuit Court of Appeals, however, held in Mr. Zarda’s case that sexual orientation discrimination constitutes discrimination “because of sex” in violation of Title VII. Likewise, the Sixth Circuit Court of Appeals held in Ms. Stephens’ case that discriminating against someone for being transgender constitutes discrimination “because of sex” in violation of Title VII.

The Decision

Justice Gorsuch wrote the Court’s 6-3 majority decision, holding that Title VII prohibits terminating an employee because of their sexual orientation or gender identity. Justice Alito filed a dissent, joined by Justice Thomas. Justice Kavanaugh filed a separate dissenting opinion. All three defendant-employers argued that the phrase “because of sex” should be interpreted literally to mean only an employee’s “status as either male or female,” as “determined by reproductive biology.”

The Court rejected the defendant-employers’ argument, stating that “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.” For example, the Court said, imagine two employees who are alike in all respects and are both attracted to men. The only difference between the two employees is that one employee is a man, and the other employee is a woman. An employer who fires the male employee because he is attracted to men, but retains the female employee who is also attracted to men, necessarily discriminates against the male employee because of his sex. As the Court stated, “[d]iscrimination based on homosexuality or transgender status necessarily entails discrimination based on sex; the first cannot happen without the second.” Thus, the Court’s holding is clear: “an employer who fires an individual merely for being gay or transgender defies the law.”

In Justice Alito’s dissent, joined by Justice Thomas, he criticized the majority, stating there Is “one word for what the Court has done today: legislation.” Alito said that it is not the Court’s role to “update” Title VII to conform with today’s values – rather, the Court should determine whether Congress, when enacting the Civil Rights Act of 1964, outlawed discrimination based on sexual orientation or gender identity. Similarly, in Justice Kavanaugh’s dissent, he criticized the majority for expanding its interpretation of “because of sex” beyond that phrase’s “ordinary meaning” – which, according to Kavanaugh, does not include sexual orientation.

Conclusion and Next Steps

The news of today’s holding is certainly bittersweet in light of the continued oppression and violence against members of the LGBT community. This oppression is especially stark for Black trans women, who are disproportionately at risk for fatal violence and discrimination. The news is also bittersweet because, sadly, two of the plaintiffs in this case – Mr. Zarda, a gay man, and Ms. Stephens, a trans woman – died before the Court issued today’s decision.

Thankfully, many employers have already established policies prohibiting discrimination based on sexual orientation and gender identity. Employers should review their written policies and handbooks to make sure they explicitly include sexual orientation and gender identity in their anti-discrimination statements. Employers should also make sure that managers and hiring managers understand the implications of today’s ruling and receive updated training, if necessary.

If you have any questions about rights of LGBT employees in the workplace, please don’t hesitate to contact me.