Supreme Court Concludes Firing an Employee Based on Sexual Orientation or Transgender Status Violates Title VII

By Zebulon D. Anderson

In a groundbreaking 6-3 decision, the Supreme Court of the United States has held that an employer who fires an individual because of the individual’s sexual orientation or transgender status violates Title VII. Bostock v. Clayton County, Georgia (June 15, 2020). Writing for the majority, Justice Gorsuch, who was nominated by President Trump to succeed Justice Scalia, resolved a series of conflicting decisions from the United States Courts of Appeal regarding the interpretation of Title VII. Relying on a “textualist” method of statutory interpretation and prior decisions by Justice Scalia, the Court concluded that Title VII’s prohibition on employment “discrimination” against “individuals” “because of” “sex” necessarily includes a prohibition on firing employees because of their sexual orientation or transgender status.

For decades, federal courts, and even the EEOC, had concluded that Title VII’s prohibition on sex discrimination did not include a prohibition on sexual orientation discrimination. The courts had reached this conclusion in a variety of ways, including: (i) while Title VII prohibits employment discrimination because of “race, color, religion, sex, or national origin,” “sexual orientation” is not on the list; (ii) when Congress enacted Title VII in 1964, Congress did not intend to prohibit sexual orientation discrimination; (iii) in 1964 when Title VII was written, an ordinary understanding of its prohibition on sex discrimination would not have included sexual orientation discrimination; and (iv) since 1964, on several occasions Congress has considered legislation that would add “sexual orientation” to the list of protected traits, but each time the legislation had failed to become law.

But, beginning at least as early as 2012, the EEOC began to articulate several theories in support of an interpretation of Title VII’s prohibition on sex discrimination that would include prohibitions on sexual orientation and transgender discrimination. And, since that time, several courts began to agree with the EEOC’s new theories. By the time the Bostock case had reached the Supreme Court: (i) the 7th Circuit Court of Appeals and the 2nd Circuit Court of Appeals, in en banc decisions, had reversed prior holdings and concluded that Title VII prohibited discrimination because of sexual orientation (Hively v. Ivy Tech Community College (7th Cir. 2017)); Zarda v. Altitude Express (2nd Cir. 2018)); and (ii) the 6th Circuit Court of Appeals had held that Title VII prohibited employment discrimination because of transgender status (EEOC and Stephens v. R.G. & G.R. Harris Funeral Homes (6th Cir. 2018)). Meanwhile, the 11th Circuit Court of Appeals had affirmed its prior decisions and held that Title VII does not prohibit employment discrimination because of sexual orientation (Bostock v. Clayton County (11th Cir. 2018)). Faced with this Circuit split, the Supreme Court decided to review the Zarda, Stephens, and Bostock decisions together in a single case.

Writing for the majority, Justice Gorsuch wasted little time cutting to the chase:

Today, we must decide whether an employer can fire someone simply for being homosexual or transgender. The answer is clear. 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.

Nor did he waste time addressing one of the expected objections to this conclusion:

Those who adopted the Civil Rights Act might not have anticipated their work would lead to this particular result. Likely, they weren’t thinking about many of the Act’s consequences that have become apparent over the years, including its prohibition against discrimination on the basis of motherhood or its ban on the sexual harassment of male employees. But the limits of the drafters’ imagination supply no reason to ignore the law’s demands. When the express terms of a statute give us one answer and extratextual considerations suggest another, it’s no contest. Only the written word is the law, and all persons are entitled to its benefit.

According to Justice Gorsuch and the Supreme Court, the meaning of the text of Title VII has been clear and unambiguous since it was written in 1964, and that text prohibits discharging an individual because of the individual’s sexual orientation or transgender status.

To reach this conclusion, the Court undertook a detailed analysis of the key text of the statute, including the terms “sex,” “because of,” “discriminate,” and “individual.” And, after doing so, it reached its conclusion:

From the ordinary public meaning of the statute’s language at the time of the law’s adoption, a straightforward rule emerges: An employer violates Title VII when it intentionally fires an individual employee based in part on sex. . . . 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. . . . The statute’s message for our cases is equally simple and momentous: 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.

So, focusing on an individual employee, if you change that person’s sex and the outcome of the challenged employment decision also would have changed, then you have employment discrimination because of sex. And, according to the Court, that necessarily means, for example, that, if an employer fires a gay man because he is sexually attracted to men, it has violated Title VII because if the sex of the man was changed to a woman (who was sexually attracted to men), then he would not have been fired.

After reaching this conclusion about the ordinary public meaning of the statute, the Court then addressed each of the counter-arguments that had been advanced. In so doing, the Court reached several ancillary conclusions, such as: (i) the label given to a discriminatory practice (e.g., an employer who contends that it was not discriminating against an employee because of “sex,” but rather because of “sexual orientation”) is irrelevant to the analysis; (ii) sex need not be the sole or even the primary cause of the adverse action to provide the foundation for a Title VII violation, it simply has to be a cause; and (iii) an employer cannot escape liability by claiming that it treats male and female employees equally as groups because the focus is on the individual.  And the Court rejected the opposing policy arguments when it set forth its final conclusion:

Ours is a society of written laws. Judges are not free to overlook plain statutory commands on the strength of nothing more than suppositions about intentions or guesswork about expectations. In Title VII, Congress adopted broad language making it illegal for an employer to rely on an employee’s sex when deciding to fire that employee. We do not hesitate to recognize today a necessary consequence of that legislative choice: An employer who fires an individual merely for being gay or transgender defies the law.

The immediate significance of this decision is clear. An employer who fires an employee because of the employee’s sexual orientation or transgender status violates Title VII. But the Court explicitly left for future decisions issues such as: (i) to what extent does the holding in this case have impact on other statutes that use the word “sex”; (ii) while firing an employee because of the employee’s sexual orientation or transgender status violates Title VII, what other policies or practices might constitute discrimination because of sex; and (iii) to what extent does the Religious Freedom Restoration Act or religious liberty rights provide a defense?

What is the practical impact of the Bostock decision on employers? For many employers, the impact in day-to-day operations may be minimal because they already have adopted policies and practices that prohibit discrimination because of sexual orientation or transgender status. Even so, now a failure to comply with such policies would not simply give rise to a policy breach, but to a violation of federal law. So the stakes are higher for all employers, and it is important that they take steps to comply with this legal development. That means that employers immediately should:

  • Review their Equal Employment Opportunity policies to assess whether they prohibit discrimination and harassment because of sexual orientation or gender identity;
  • If such prohibitions are not included, they should be added;
  • Any such new policies should be circulated to all employees;
  • Consider soon conducting sexual harassment training that is focused on sexual harassment because of sexual orientation or gender identity, and certainly update any future harassment training programs to cover those topics; and
  • Make sure that managers and Human Resources personnel are aware of this legal development and take steps to ensure compliance when making and vetting adverse employment actions, as well as when making hiring decisions. 

If you have any questions, please contact the Smith Anderson lawyer with whom you normally work.


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