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June 16, 2020 Issue: June 2020

Supreme Court Speaks: Title VII Forbids Workplace Discrimination Based on Sexual Orientation and Transgender Status

By: David L. Johnson, Kenneth L. Wagner and Denise K. Drake

In a monumental decision from a trio of cases issued on June 15, 2020, the United States Supreme Court ruled that Title VII of the Civil Rights Act of 1964 prohibits discrimination on the basis of sexual orientation and/or transgender status.

In Bostock v. Clayton County, Georgia and Altitude Express, Inc. v. Zarda, the issue was whether Title VII’s prohibition against employment discrimination “because of . . . sex” includes discrimination based on an individual’s sexual orientation. In Altitude Express, the Second Circuit (en banc) concluded that sexual orientation discrimination is a form of sex discrimination forbidden by Title VII, whereas the Eleventh Circuit concluded otherwise in Bostock. In R.G. & G.R, Aimee Stephens, a Michigan funeral director, was fired after informing the funeral home owner of a “gender identity disorder” and plans to have gender confirmation surgery and to “live and work full-time as a woman.” The Sixth Circuit’s three-judge panel unanimously determined that Title VII protects transgender and transitioning employees.

The Supreme Court consolidated all three cases and found in Bostock that each of the plaintiffs was protected under Title VII. In a 6-3 decision written by Justice Neil Gorsuch, the Court found that each of the employees’ sex played a role in their adverse employment actions and, applying a literal interpretation of the statute, concluded such discrimination is forbidden. The Court acknowledged the employers’ argument that Congress, when it enacted Title VII, contemplated that “the term ‘sex’ in 1964 referred to ‘status as either male or female [as] determined by reproductive biology.’” Nevertheless, Congress could have—but did not—prohibit discrimination “solely” because of sex.

In the trio of cases, each of the employees’ sex, combined with other factors, played a role in their adverse employment actions. Therefore, the Court reasoned that they were discriminated against because of their sex in violation of Title VII. According to the Court, “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex . . . . When an employer fires an employee because she is homosexual or transgender, two causal factors may be in play—both the individual’s sex and something else (the sex to which the individual is attracted or with which the individual identifies).”

In dissenting opinions, Justices Samuel Alito (joined by Justice Clarence Thomas) and Justice Brett Kavanaugh stated that the majority departed from Congress’s intent when Title VII was enacted. The majority, however, asserted that the statute’s text should serve as the measure of Congress’s intent and that “when the meaning of the statute’s terms is plain, our job is at an end.” The Court also noted that, relatively soon after Title VII was enacted, some plaintiffs argued that homosexual and transgender employees were protected by the Act, thus demonstrating that Congress’s intent was not as clear cut as the dissenters suggest. The Court also noted that an argument could be made that Congress in 1964 did not intend for Title VII to prohibit same-sex harassment, and yet the Court in Oncale v. Sundowner Offshore Services, Inc., concluded in 1998 that it does so. The Court left open the interplay between Title VII and the Religious Freedom Restoration Act and the viability of a defense that compliance with Title VII could require certain employers to violate their religious convictions.

Management Perspective


by Denise K. Drake

Employers should be looking at their handbooks and relevant policies to identify what updates may be required. They should also consider engaging their employees with renewed anti-discrimination and harassment training.

From a risk standpoint, employers should be aware of the potential for additional charges of discrimination and lawsuits, regardless of whether they have merit, as protections have now extended from less than half the states along with several municipalities to all employees nationwide.

The Court did not address how religious beliefs potentially impact Title VII’s expanded coverage. The Court specifically noted that “how these doctrines protecting religious liberty interact with Title VII are questions for future cases” because “none of the employers before us today represent in this Court that compliance with Title VII will infringe their own religious liberties in any way.” While Harris Funeral Homes unsuccessfully pursued a Religious Freedom Restoration Act Claim before the Sixth Circuit Court of Appeals, it did not seek reviews of that decision before the Supreme Court. The intersection of these two sets of protections will almost certainly be a focus of future litigation related to sexual orientation and gender identity.

Employee Perspective


by Kenneth L. Wagner

In Bostock, the Supreme Court issued an important civil rights decision that marks an enormous victory for LBGTQ employees. Millions of gay, lesbian, bisexual and transgender workers will now be unquestionably protected by federal law from employment discrimination.

The first paragraph of the majority’s opinion states the question and its answer in plain terms:

Today, we must decide whether an employer can fire someone simply for being homosexual or transgender. The answer is clear. 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.

The majority opinion employs a straightforward construction of Title VII. Proceeding on the assumption that the term “sex” refers to “biological distinctions between male and female[,]” and applying the traditional but-for causation standard, the majority reaches the inescapable conclusion that discrimination on the basis of sexual orientation or gender identity necessarily entails discrimination based on sex. Because Title VII forbids such discrimination against individual employees, adverse employment actions based on sexual orientation or gender status is unlawful.

There is no doubt that the Bostock decision will have far-reaching consequences. Most immediately, it means that employees in the more than two dozen states that do not have laws prohibiting sexual orientation and gender status discrimination are now protected by federal law.

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