U. S. Supreme Court Rules that Employers Cannot Discriminate Against LGBTQ Employees

By: Rafael P. McLaughlin, Esq. and Leslie L. Kizziar, Esq.

In a landmark decision that expands the protections of Title VII of the Civil Rights Act of 1964, the U.S. Supreme Court, in Bostock v. Clayton Cnty., Ga, No. 17-1618, 590 U.S. __ (2020), ruled that Title VII protects gay and transgender employees from discrimination on the basis of sexual orientation. The Court’s 6-3 opinion, which was authored by Justice Neil Gorsuch, marks the first extension of federal workplace protections to LGBTQ employees.

Bostock, which combined three different cases,[1] concerned whether Title VII, which prohibits employment discrimination based on race, religion, national origin, and sex, also prohibits workplace discrimination on the basis of sexual orientation and gender identity. Bostock and Altitude Express, Inc. v. Zarda, involved gay men, Gerald Bostock and Donald Zarda, who claimed they were fired from their jobs because of their sexual orientation. Bostock, a highly respected child services coordinator, was fired after his boss learned he had joined a gay softball league. Zarda, a skydiving instructor, lost his job after telling a female client he was gay to ease her discomfort at being in close physical contact during a tandem jump.  Harris Funeral Homes concerned Aimee Stephens, a transgender woman who was fired from her long-time job as a funeral director after she advised her employer of her decision to proceed with her transition from a man to a woman.

The Court’s majority emphasized that while sexual orientation and transgender status are “conceptually distinct from sex,” discrimination based on those traits necessarily entails discrimination “based on sex.” The former cannot occur without the latter. The Court held that an employer who fires an employee for being homosexual or transgender fires that person for actions or attributes it would tolerate in a heterosexual or cisgender employee. Accordingly, sex plays a “necessary and undisguisable role in the decision,” which is expressly forbidden by Title VII. The Court reasoned that since Title VII makes it illegal for an employer to make employment decisions on the basis of an employee’s sex, a necessary consequence is that an employer who fires a worker for being gay or transgender is in violation of Title VII’s expressed prohibition against discrimination based on a person’s sex.  Additionally, the Court emphasized that an employer who fires an individual because of sexual orientation or transgender status discriminates because of sex irrespective of whether the employer subjects all male and female homosexual or transgender employees to the same treatment.

Justice Samuel Alito, in a dissent joined by Justice Clarence Thomas, reasoned that if Title VII was intended to include sexual orientation and transgender status as protected classifications, it is a matter for the legislature and not the judiciary. Justice Alito criticized the majority for an “arrogant” and “illogical” interpretation of Title VII, noting that in 1964, “ordinary Americans reading the text of Title VII would not have dreamed that discrimination because sex meant discrimination of sexual orientation, much less gender identity. The ordinary meaning of discrimination because of ‘sex’ was discrimination because of a person’s biological sex, not sex­ual orientation or gender identity.” (emphasis added).  Justice Alito further noted that the Majority’s “exotic understanding of sexual discrimination” will have “far-reaching consequences” on everyday situations such as bathroom and locker room access; women’s sports; access to housing; employment by religious organizations; healthcare; and freedom of speech.

Bostock, and its expansion of Title VII protections, will have a tremendous – and lasting – impact on employer interaction with, and treatment of, LGBTQ employees.  This is particularly true in the 29 states that presently do not have LGBTQ discrimination protection, including Indiana, Kentucky, and Ohio.  Employers will be wise to incorporate the principles established by Bostock into their employment policies, procedures, and practices and afford their LGBTQ employees all the rights and protections of Title VII.  Otherwise, they risk exposure to workplace discrimination claims.

Should you have any questions regarding this issue, please contact any member of our Employment Practices Defense Group.

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[1] In addition to Bostock v. Clayton Cnty. Bd. Of Commissioners, 894 F.3d 1335 (11th Cir. 2018), Zarda v. Altitude Express, Inc., 883 F.3d 100 (2d. Cir. 2018) and Equal Emp’t Opportunity Comm’n v. R.G. & G.R. Harris Funeral Homes Inc., 884 F.3d 560 (6th Cir. 2018) were before the Court on certiorari.