US Supreme Court Makes Landmark Ruling on Employment Discrimination Protections for Gay, Lesbian and Transgender Employees

On June 15, 2020, the United States Supreme Court held that Title VII, the federal law prohibiting employment discrimination because of sex, extends to gay, lesbian, and transgender employees. Thus, adverse action against employees because of their sexual orientation or identity is now barred by federal statute in all 50 states.

The United States Supreme Court determined in Bostock v. Clayton County, Georgia that employers violated Title VII of the Civil Rights Act of 1964, and its broad prohibition of employment discrimination because of sex, when they discharged employees for being gay or transgender.  The Court’s opinion also resolved the cases of Zarda v. Altitude Express, Inc. and EEOC v. R.G. &. G.R. Harris Funeral Homes, Inc.  The decision will allow people who claim they were discriminated against in the workplace based on their sexual orientation or gender identity, to file charges of employment discrimination and lawsuits, in the same way as people claiming race discrimination.

Understanding Title VII

Title VII of the Civil Rights Act of 1964 provides, in pertinent part, that Employers may not “fail or refuse to hire or . . . discharge any individual, or otherwise . . . discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s . . . sex.”  The Court noted that the parties conceded that the term “sex” in 1964 referred to the biological distinctions between male and female. The Court further noted the parties’ agreement that the ordinary meaning of “because of’ is ‘by reason of’ or ‘on account of.’” The Court held 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.”  Thus, Title VII incorporates the but-for causation standard, which means that a defendant cannot avoid liability just by citing some other factor that contributed to its challenged employment action so long as the employee’s sex was part of the decision.

What This Means

• An employer violates Title VII when it intentionally discharges an individual employee based in part on sex, regardless of whether other factors besides the employee’s sex contributed to the decision.
• Because discrimination on the basis of sexual orientation or transgender status requires an employer to intentionally treat individual employees differently because of their sex, employers who intentionally penalize employees for being homosexual or transgender violate Title VII.
• Gay, lesbian, and transgender employees no longer need to rely on state and municipal protections which were only available in 24 of the 50 states and a number of cities.
• Employees who suffer adverse employment actions due to their sexual orientation or sexual identity may now may assert federal claims, gaining access to the United States Equal Employment Opportunity Commission and the federal courts.

What Employers Should Now Consider

• Employers who operate in states and localities that do not provide statutory protections from discrimination on the basis of sexual orientation or transgender status should update their employment policies, including their harassment policies and complaint forms, to ensure that they are in full compliance with Title VII as interpreted by the Supreme Court.
• Employers should review decisions contemplating adverse employment action against an employee for economic or performance reasons to ensure that the employee’s sexual orientation or transgender status played no part in the decision making.
• Employers that have not already done so, should add avoidance of discrimination based on sexual orientation and transgender status to their management and employee harassment avoidance trainings

As always, we encourage employers to consult with counsel with their specific questions and concerns related to compliance with Title VII or other federal, state and local employment discrimination statutes.