On June 15, 2020, the United States Supreme Court ruled that Title VII of the Civil Rights Act of 1964 (“Title VII”) – which bans employment discrimination on the basis of race, color, religion, national origin, and sex – prohibits discrimination based on sexual orientation and transgender status. This decision marks a pivotal change from prior decisions of federal appellate and district courts which held that Title VII only banned discrimination based on the biological distinctions between persons born as male and female. It also obviates the need for the types of bills that have been submitted to Congress annually to expand the language of Title VII to include references to sexual orientation, gender stereotyping, and gender identity.
The Court’s decision, which will be referred to as Bostock v. Clayton County, Georgia, resolved two lawsuits filed by gay men who were fired because of their sexual orientation and a third lawsuit filed by a transgender employee who was hired as a man and terminated after advising the employer that he intended to embrace his true gender identity and return to work as a woman following a vacation. Writing for the majority, Justice Neil M. Gorsuch stated that “[a]n 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 supported its opinion with repeated references to its prior decisions in the Oncale case, which held that Title VII prohibits male-on-male sexual harassment, the Phillips case, which held that Title VII prohibits discrimination against mothers of young children, and the Manhart case, which held that Title VII invalidated an employer’s policy of requiring female employees to make higher pension fund contributions because women typically live longer than men. And despite several references to “but for” causation, the decision makes it clear that any decision based “in part” on sexual orientation or transgender status violates Title VII, even if other non-discriminatory factors played some role.
The Court’s 6-3 ruling by a combination of its four liberal justices, as well as Justice Gorsuch and Chief Justice Roberts, has broad implications for employers across the country. More than half of U.S. states’ anti-discrimination laws do not cover sexual orientation and gender identity, and those laws will likely be revised. The decision will certainly lead to more EEOC charges and litigation. Therefore, employers who want to avoid discrimination liability in a post-Bostock world, and who have not already incorporated sexual orientation or transgender protections in their policies, will need to revise employee handbooks and supervisor training and work with their human resources team and outside counsel to ensure compliance.
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