U.S. Supreme Court: Title VII Protects Gay and Transgender Employees

On Monday, the United States Supreme Court ruled that the ban on sex discrimination in Title VII of the 1964 Civil Rights Act protects gay and transgender employees. Title VII prohibits discrimination against employees on the basis of race, color, religion, sex or national origin. Justice Neil M. Gorsuch wrote the majority opinion. He was joined by Chief Justice John G. Roberts Jr. and Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan. Justices Brett Kavanaugh and Samuel Alito Jr. wrote separate dissents. Justice Clarence Thomas joined Alito’s dissent.

The decision was issued in three combined cases, all of which came before the Court on the same day this past October: Bostock v. Clayton CountyAltitude Express v. Zarda, and R.G. & G.R. Harris Funeral Homes v. Equal Employment Opportunity Commission. The plaintiffs in those cases argued the word “sex” in Title VII prohibits not just discrimination against an employee because that employee is male or female, but also because of that employee’s gender identity and/or sexual orientation.

After noting that “few pieces of federal legislation rank in significance with the Civil Rights Act of 1964,” Gorsuch framed the question before the Court: “Today, we must decide whether an employer can fire someone simply for being homosexual or transgender.” He continued: “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.” As stated in the Syllabus of the Opinion:

An employer violates Title VII when it intentionally fires an individual employee based in part on sex. It makes no difference if other factors besides the plaintiff’s sex contributed to the decision or that the employer treated women as a group the same when compared to men as a group. A statutory violation occurs if an employer intentionally relies in part on an individual employee’s sex when deciding to discharge the employee. Because discrimination on the basis of homosexuality or transgender status requires an employer to intentionally treat individual employees differently because of their sex, an employer who intentionally penalizes an employee for being homosexual or transgender also violates Title VII. There is no escaping the role intent plays: Just as sex is necessarily a but-for cause when an employer discriminates against homosexual or transgender employees, an employer who discriminates on these grounds inescapably intends to rely on sex in its decision making.

Gorsuch offered an example within his Opinion: An employer has two employees who are both attracted to men—one is male and one is female. The employees are “otherwise identical.” If the employer fires the male employee only because he is attracted to men, while keeping the female employee, the employer has violated Title VII: “When an employer fires an employee because she is homosexual or transgender, two causal factors may be in play—both the individual’s sex and something else (the sex to which the individual is attracted or with which the individual identifies). But Title VII doesn’t care. If an employer would not have discharged an employee but for that individual’s sex, the statute’s causation standard is met, and liability may attach.” As the Opinion states in summary: "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."

Employers whose employment policies do not currently provide for nondiscrimination based on sexual orientation or gender identity should update and circulate those policies. If you need assistance in doing so, please contact a member of our Employment Team.