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Publications | June 15, 2020
4 minute read

U.S. Supreme Court Holds That Discrimination Based Upon Sexual Orientation or Transgender Status Violates Title VII of the Civil Rights Act

The United States Supreme Court issued a decision today in the case of Bostock v. Clayton County, Georgia, holding that an employer violates Title VII of the Civil Rights Act of 1964 when it fires or otherwise discriminates against an employee because of the employee’s sexual orientation or transgender status.  

The case involved appeals from three different lower court cases. In Gerald Bostock’s case, he had worked as a child welfare advocate for Clayton County, Georgia, for a decade, leading his department to national awards for its work. Shortly after he began participating in a recreational softball league for gay men, he was fired for conduct “unbecoming” a county employee. In a second case, plaintiff Donald Zarda had worked for several seasons as a skydiving instructor and was fired just days after mentioning that he was gay. In a third case, arising out of Michigan, plaintiff Aimee Stephens worked at a funeral home for six years. Ms. Stephens had presented as a male at the time she was hired for the job. She was later diagnosed with gender dysphoria, and in her sixth year with the company wrote a letter to her employer explaining that she planned to “live and work full-time as a woman” after returning from an upcoming vacation. The funeral home terminated her employment before she left, telling her “this is not going to work out.”  

For purposes of their appeals, the employers did not dispute that they fired the plaintiffs because of their sexual orientation or transgender status. Rather, the employers argued that even intentional discrimination against employees based upon sexual orientation or transgender status did not violate Title VII as a matter of law. 

The Supreme Court, however, held that such terminations do violate Title VII based on the plain language of the statute. The Court stated: “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.”  

The Supreme Court rejected arguments that those who adopted the Civil Rights Act would not have anticipated this particular result, noting that the same could be said of decisions prohibiting discrimination on the basis of motherhood or banning sexual harassment of male employees. But the “limits of the drafters’ imagination” does not control the interpretation, the Court held. To the contrary, “[o]nly the written word is the law, and all persons are entitled to its benefit.” 

The Court held that “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.” The court gave the example of two employees, both of whom are attracted to men. It posited that the two individuals were, in the employer’s evaluation, materially identical except that one is a man and the other a woman. If the employer fires the male employee because of the fact that he is attracted to men, then the employer is discriminating against him for traits or actions that it tolerates in its female employees. 

Similarly, the Court noted that it was no defense for an employer to respond by stating that it does not discriminate because it fires all male and female employees who are homosexual or transgender. That is because the law protects individuals, and makes each instance of discriminating against an individual a separate violation of Title VII. In other words, an employer who fires both women who are attracted to women and men who are attracted to men does not avoid liability – it doubles it. 

The Court concluded that Congress adopted broad language making it illegal for an employer to rely on an employee’s sex when deciding to discharge that employee, and that “a necessary consequence of that legislative choice” is that an “employer who fires an individual merely for being gay or transgender defies the law.” 

Warner’s Labor and Employment Group has been carefully monitoring these developments and requirements and can assist you in creating the appropriate plan for your business. Please contact Dean Pacific or your Warner attorney for assistance.