Supreme Court: Title VII Protects Gay, Lesbian, and Transgender Employees
On June 15, 2020, the Supreme Court of the United States, by a 6-3 vote, held that an employer who fires an individual merely for being gay or transgender violates Title VII’s prohibition on sex discrimination.
The decision combines three separate cases into a single ruling, and as the majority opinion observed, “[e]ach of the three cases before [the Court] started the same way: An employer fired a long-time employee shortly after the employee revealed that or she is homosexual or transgender—and allegedly for no reason other than the employee’s homosexuality or transgender status.” But whereas the cases began the same, they ended differently: for plaintiffs Mr. Zarda and Ms. Stephens, the Second and Sixth Circuits, respectively, concluded that sexual orientation discrimination does violate Title VII and allowed the employees’ cases to proceed. Mr. Zarda and Ms. Stephens both passed away while their suits were pending, but their estates continued to press the cause. In Mr. Bostock’s suit, the Eleventh Circuit held that the law does not prohibit employers from firing employees for being gay. The Supreme Court granted certiorari to all three plaintiffs to “resolve at last the disagreement among the courts of appeals over the scope of Title VII’s protections for homosexual and transgender persons.”
The majority opinion (authored by Justice Gorsuch) ruled that even if Congress did not have discrimination based on sexual orientation or gender identity in mind when it enacted the Civil Rights Act of 1964, the express terms of the statute make clear that gay, lesbian, and transgender individuals are protected from discrimination by Title VII’s prohibition on sex discrimination.
The majority summarized the reason for the holding at the outset of the decision, finding 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 therefore established a “straightforward rule” that “[a]n employer violates Title VII when it intentionally fires an individual employee based in part on sex…put differently, if changing the employee’s sex would have yielded a different choice by the employer—a statutory violation has occurred.” To illustrate that rule, the majority advanced this example when applied to employees fired for being gay:
“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. Put differently, the employer intentionally singles out an employee to fire based in part on the employee’s sex, and the affected employee’s sex is a but-for cause of his discharge.”
And to illustrate the rule when applied to employees fired for being transgender, the majority gave this example:
“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 majority also pulled support for its holding from precedent, citing Phillips v. Martin Marietta Corp., 400 U.S. 542 (1971), a case where the Court found an employer violated Title VII’s prohibition on sex discrimination when it refused to hire women with children, but did not refuse to hire men with children. The Court also cited Los Angeles Dept. of Water and Power v. Manhart, 435 U.S. 702 (1978), a case where the Court found an employer violated Title VII when it required women to make larger pension fund contributions than men, justifying that requirement with a “statistically accurate” statement about life expectancy: women tend to live longer than men, and thus are likely to receive more from the pension fund over time. Still even though the employer lacked “animosity” towards women in advancing its pension rule, the rule violated Title VII’s prohibition against disparate treatment towards individuals, each of whom may have been forced to make larger contributions, and then die as early as a man. In these cases, the employer could not “pass the simple test” when asked whether “an individual female employee would have been treated the same regardless of her sex.
In this case, the employers did not dispute that they fired the plaintiffs for being homosexual or transgender, and only argued that “even intentional discrimination against employees based on their homosexuality or transgender status supplies no basis for liability under Title VII.” The Court disagreed, for all the reasons stated above.
Read the full opinion: Bostock v. Clayton County, Georgia.
This case law update was written by Conor D. Dirks, Associate Attorney, Shaw Bransford & Roth, PC.
For thirty years, Shaw Bransford & Roth P.C. has provided superior representation on a wide range of federal employment law issues, from representing federal employees nationwide in administrative investigations, disciplinary and performance actions, and Bivens lawsuits, to handling security clearance adjudications and employment discrimination cases.