An Employer Who Fires An Individual For Being Gay or Transgender Violates Title VII
On June 15, 2020, the U.S. Supreme Court held in Bostock v. Clayton Cty., 140 S. Ct. 1731 (2020) that an employer who fires an individual merely for being gay or transgender violates Title VII of the Civil Rights Act of 1964. Prior to the court’s historic decision, fewer than half the states had statutes banning discrimination against LGBTQ+ employees. Through the Supreme Court’s groundbreaking interpretation of Title VII, those protections now stretch across the nation.
In reaching its decision, the Court focused on Title VII’s plain language, which commands that it is “unlawful … for an employer … to discriminate … because of … sex.” 42 U.S.C. §2000e- 2(a)(1). “Sex plays a necessary and undisguisable role in the decision” to fire an employee for being gay or transgender, the Court reasoned—“exactly what Title VII forbids.”
The Court was careful to note that its holding was based on the facts of the cases before it—it left other hypothetical questions for future courts to resolve. Because of this, it is likely that future litigants will be emboldened to test the bounds of other sex-discrimination laws.
The Pre-Bostock Environment
For decades, courts held that the prohibition in Title VII on workplace discrimination “because of
… sex” did not include sexual orientation or gender identity. In 1989, the Supreme Court held that discrimination based on sex-based stereotypes is prohibited by Title VII. Since then, lower courts have struggled to distinguish between claims based on sex-based stereotypes (which were actionable) and claims based on gender identity or sexual orientation (which were generally viewed as unactionable).
The issue ultimately made its way to the Supreme Court in Bostock due to a split in U.S. Circuit Courts of Appeal. The split emerged after the Supreme Court’s 2015 decision in Obergefell v. Hodges, 135 S.Ct. 2584 (2015), which recognized the right of same-sex couples to marry. As the Seventh Circuit observed in 2017, there existed “a paradoxical legal landscape in which a person can be married on Saturday and then fired on Monday for just that act.” Hively v. Ivy Tech Cmty. Coll. of Ind., 853 F.3d 339, 342 (7th Cir. 2017). To resolve this paradox, the Supreme Court granted certiorari on several appellate rulings and consolidated them.
The Three Cases Before the Court
Bostock involved three underlying cases: Bostock v. Clayton Cty. Bd. of Comm'rs, 723 F. A’ppx 964 (11th Cir. Ga., May 10, 2018); Zarda v. Altitude Express, Inc., 883 F.3d 100 (2d Cir. N.Y., Feb. 26, 2018); and EEOC v. R.G. &. G.R. Harris Funeral Homes, Inc., 884 F.3d 560 (6th Cir. Mich., Mar. 7, 2018) (plaintiff Amiee Stevens).
Gerald Bostock was employed as a child welfare advocate by Clayton County, Georgia. Under Mr. Bostock’s decade-plus leadership, the employer won national awards for its work. However, Clayton County allegedly terminated him for conduct “unbecoming” a county employee after it discovered he participated in a gay recreational softball league.
Donald Zarda was employed as a skydiving instructor by Altitude Express in New York. Altitude Express allegedly terminated him days after he mentioned he was gay.
Aimee Stephens presented as a male at the time R.G. & G.R. Harris Funeral Homes hired her. Following a diagnosis of gender dysphoria, she informed the funeral home that she planned to “live and work full-time as a woman.” Her employer allegedly fired her for it—simply saying, “[T]his is not going to work out.”
Each employee sued under Title VII. The Eleventh Circuit dismissed Mr. Bostock’s claims, while the Second Circuit and Sixth Circuit allowed Mr. Zarda’s and Ms. Stephens’ claims, respectively, to proceed.
The Supreme Court Resolves the Split
In a 6-3 decision penned by Justice Neil Gorsuch, the Court affirmed the Second and Sixth Circuits and reversed the Eleventh Circuit. The Court held that when an employer fires an employee for being gay or transgender “it necessarily and intentionally discriminates against that individual in part because of sex. And that is all Title VII has ever demanded to establish liability.”
Justice Gorsuch acknowledged that the legislators who adopted the Civil Rights Act likely did not anticipate that the law would extend to protect gay and transgender employees. Nonetheless, he wrote, “[T]he limits of the drafters’ imagination supply no reason to ignore the law’s demands … only the written word is the law, and all persons are entitled to its benefit.”
The Court rejected the employers’ argument that “homosexuality and transgender status fell outside the enumerated list of protected classes in Title VII.” Justice Gorsuch explained that discrimination based on homosexuality or transgender status necessarily entails discrimination based on sex—“the first cannot happen without the second.”
Responding to counterarguments against its interpretation of Title VII, the Court explained that Title VII protects “individuals” from discrimination even if the employer otherwise tended to favor that individual’s group or otherwise appeared “evenhanded at the group level.” It also protects an individual singled out by a co-worker of the same sex for sexual harassment.
Chief Justice John Roberts and Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan joined Justice Gorsuch’s majority opinion.
Justice Samuel Alito filed a dissent joined by Justice Clarence Thomas. Justice Alito said there “is only one word for what the Court has done today: legislation.” Justice Alito’s primary concern was that the majority opinion would have far-reaching consequences to other federal laws that ban discrimination “because of sex,” including the Fair Housing Act and Title IX. Justice Brett Kavanaugh also dissented separately.
What Lies Ahead for Employers?
Many employers already have workplace policies prohibiting discrimination based on sexual orientation, gender identity, and transgender or transitioning status. Employers without such policies should update their anti-discrimination and harassment policies and training because federal law now prohibits discrimination based on sexual orientation and gender identity including transgender and transitioning status.
Beyond that, it is unclear how far Bostock’s reach extends. The Court declined to address concerns that its decision may “sweep beyond Title VII to other federal or state laws” barring sex discrimination. The Court also declined to address how the decision may affect issues such as sex- segregated bathrooms, locker rooms, and dress codes.
Because of this, employers should pay careful attention as the law develops and update their policies accordingly. Litigants will no doubt use the reasoning in Bostock to challenge the bounds of other laws barring sex-discrimination, including Title IX (federally funded educational programs), the Equal Pay Act, the Affordable Care Act, the Fair Housing Act and the Equal Credit Opportunity Act.
About the Authors: Sean Walsh and Cameron Kynes
Sean Walsh
Sean’s practice concentrates on complex commercial and employment litigation in federal and state courts. His litigation experience includes a wide array of commercial, contract, business, and real property disputes, including cases involving issues of personal and subject matter jurisdiction, national class actions, requests for jurisdictional discovery, and federal preemption.
Sean’s employment litigation experience includes defending employers against discrimination, retaliation, whistleblower, and wage-and-hour claims before federal and state courts and administrative agencies. He also has experience prosecuting and defending unfair competition and restrictive covenant actions, and claims of tortious interference and misappropriation of trade secrets. In addition to his litigation experience, Sean has assisted clients with navigating federal, state, and local laws and regulations governing employment relationships. He has assisted clients in drafting employment agreements, handbooks and policies, and individual and group separation agreements, including reductions in force implicating the provisions of the Older Workers Benefit Protection Act. Sean also has experience assisting clients with federal, state, and local laws and regulations impacting the railroad industry.
Cameron Kynes
Cameron proactively works with clients to prevent, litigate, and resolve employment-related claims. He has broad experience defending employers against discrimination, retaliation, and wage-and-hour claims before federal and state courts and administrative agencies, as well as in arbitration proceedings. He also has experience in trade-secret litigation, including seeking injunctive and equitable relief related to restrictive covenants, tortious interference, and misappropriation of trade secrets. Cameron provides preventative advice regarding compliance with various federal, state, and local employment laws, including the FMLA, FLSA, NLRA, Title VII, ADEA, and the ADA. Additionally, he counsels employers regarding employment agreements, non-compete agreements, separation agreements, employee handbooks, workplace policies, and employee discipline.
Cameron currently serves as Vice Chair of the Jacksonville Bar Association’s Labor & Employment Committee. Prior to entering private practice, Cameron served as law clerk to Judge Gregory Phillips of the U.S. Court of Appeals for the 10th Circuit. He also practiced as an associate in the Washington, D.C. office of an international law firm.