Today, the U.S. Supreme Court has issued a landmark case involving Title VII of the Civil Rights Act of 1964 and the definition of “sex” for the purpose of unlawful discrimination. In a 6-3 opinion authored by Justice Gorsuch, Bostock v. Clayton County, Georgia, No. 17–1618 (U.S. June 15, 2020), the Court held that an employer who terminates an employee for merely being gay or transgender violates Title VII.
This decision includes three consolidated appeals, Bostock, Altitude Express, Inc. and R.G. & G.R. Harris Funeral Homes Inc.,1 with similar factual backgrounds: the employer allegedly terminated the employment of a long-term employee simply due to sexual orientation or gender-identity. In Bostock, plaintiff’s employment was terminated after it became known of his participation in a gay recreational softball league (conduct “unbecoming” a county employee). In Altitude Express, Inc., plaintiff was fired shortly after disclosing his sexual orientation. And, in R.G. & G.R. Harris Funeral Homes Inc., plaintiff who presented as male upon hire, was terminated when she informed the company that she planned to “live and work full-time as a woman.” Each plaintiff filed a lawsuit asserting unlawful sex discrimination under Title VII. The 11th Circuit in Bostock dismissed the case as a matter of law holding that Title VII does not provide a cause of action for sexual orientation discrimination; however, the 2nd and 6th Circuits did allow the plaintiff’s respective claims to proceed to summary judgment.
The Court held that:
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.
Rather than focusing on legislative intent, the Court instead focused on the plain reading of the statute. The Court focused on “determin[ing] the ordinary public meaning of Title VII’s command” prohibiting discrimination.
It is important to note that the Court did not amend Title VII to include sexual orientation or gender identity to the list of protected classes. The Court reasoned that, “if the employer intentionally relies in part on an individual employee’s sex when deciding to discharge the employee—put differently, if changing the employee’s sex would have yielded a different choice by the employer—a statutory violation has occurred.”
Likewise, the Court also explained in two examples below how sexual orientation and gender identity falls within Title VII’s definition of “sex”:
An individual’s homosexuality or transgender status is not relevant to employment decisions. That’s because it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex. Consider, for example, an employer with two employees, both of whom are attracted to men. The two individuals are, to the employer’s mind, materially identical in all respects, except that one is a man and the other a woman. If the employer fires the male employee for no reason other than the fact he is attracted to men, the employer discriminates against him for traits or actions it tolerates in his female colleague.
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Or take an employer who fires a transgender person who was identified as a male at birth but who now identifies as a female. If the employer retains an otherwise identical employee who was identified as female at birth, the employer intentionally penalizes a person identified as male at birth for traits or actions that it tolerates in an employee identified as female at birth. Again, the individual employee’s sex plays an unmistakable and impermissible role in the discharge decision.
The Bottom Line. This opinion is important for all employers since for the first time Title VII’s prohibition against sex discrimination includes sexual orientation and gender identity and may result in a shift to more EEOC charges and federal Title VII lawsuits; perhaps less so in New Jersey and many other States which have already protected these categories under their respective human rights laws. Employers should consider reviewing their policies and training to ensure a commitment against discrimination and harassment in the workplace with regard to sexual orientation and gender identity.
1 Bostock v. Clayton Cty. Bd. of Comm'rs, 723 F. App'x 964, 964 (11th Cir. 2018); Altitude Express Inc. v. Zarda, 883 F.3d 100 (2d Cir. 2018) and R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission, 884 F.3d 560 (6th Cir. 2018).