On June 15, 2020, the U.S. Supreme Court issued a landmark 6-3 decision in Bostock v. Clayton County that settled whether Title VII’s prohibition of sex-based discrimination also prohibits discrimination based on sexual orientation and/or gender identity and expression. In a decision authored by Judge Gorsuch and joined by Chief Justice Roberts and four other Justices, the Court ruled in the affirmative, extending Title VII’s protections to LGBTQ individuals. The Court also previewed potential litigation to follow, specifically when Title VII’s protections intersect with the freedom of religion.
The Case Background and the Court’s Opinion
Bostock v. Clayton County came to the Supreme Court as a combination of three separate cases from the 2nd, 6th and 11th Circuit Courts of Appeals. The three plaintiffs, Bostock, Stephens, and Zarda, had all alleged that they had been fired because of their sexual orientation and/or transgender status. However, the Courts of Appeal below had decided the cases differently: the 11th Circuit dismissed Bostock’s case holding that, as a matter of law, Title VII did not protect against discrimination based on sexual orientation, while the 2nd and 6th Circuits came to the opposite conclusion. The Supreme Court took the case to resolve this Circuit split.
Succinctly, the Supreme Court held as follows: “An employer who fires an employee merely for being gay or transgender violates Title VII.” While the majority opinion cited to a long list of previous employment discrimination cases, it relied on the general principle that an employer violates Title VII when it intentionally fires an employee at least partially because of their “sex,” a specifically enumerated protected class within Title VII, along with gender. It does not matter whether the employer’s decision is motivated by factors unrelated to sex or whether the policy is applied evenhandedly to all men or women. It also does not matter if a policy discriminates against both men and women, e.g., as a policy against gay men (but not gay women) would.
Based on these prior decisions and general principles, the Supreme Court determined that when an employer discriminates against an individual because he or she is gay or transgender, they are discriminating on the basis of sex, at least in part. Judge Gorsuch explained this via the following example: if the employer had two employees, one male and one female, both of whom are attracted to men, and the employer fires only the male employee who is attracted to men, it has discriminated on the basis of sex because it is treating two identical employees differently based on sex. The same holds true for a transgender individual: if two employees both identify as female, but one was born a female and the other a male, and the employer only fires the one who was born a male, it has discriminated against that employee on the basis of sex. The Court made this decision based on the majority’s interpretation of the plain language of Title VII.
Dissenting, Judges Alito, Kavanaugh and Thomas each argued that Congress, in 1964, could not have intended the prohibition on discrimination because of “sex” to protect LGBTQ individuals, leaving scholars and partisans to debate whether the majority or minority was actually honoring a “textual” approach. Regardless of that debate, the Supreme Court has settled the meaning of Title VII, giving LGBTQ employees equal standing in the fight against employment discrimination. While important on the federal level and symbolically during these significant times, the Bostock opinion carries important practical meaning given that many states, including the State of Georgia, do not protect against sexual orientation discrimination on the state level.
Without in any way detracting from this landmark decision, Bostock also raised additional questions and potential litigation over the interplay between Title VII and the freedom of religion. In fact, this issue was raised both by Justice Gorsuch in his majority opinion and by other justices in their dissents. We expect significant litigation to ensue as religious organizations particularly turn to the freedom of religion to test the boundaries of Title VII.
On the practical side, all employers should evaluate their current anti-discrimination policies to ensure that sexual orientation and gender identity are included as protected classes. More practically, and perhaps as part of broader training on issues of diversity, inherent bias, and race-based privilege, employers should include sexual orientation and gender identity in their training, and demand that all individuals, regardless of their differences, are entitled to equal treatment in the workplace. Without such training, we expect that the kinds of “boy’s club atmospheric” claims that women have brought as part of the #MeToo movement will expand to include LGBTQ employees who feel marginalized by the same behaviors.
If you have additional questions about this decision and how it may affect your business, please contact one of the members of the AGG Employment Law Team.