15 Oct Impact of the Landmark Supreme Court Decision Prohibiting Discrimination on the Basis of Sexual Orientation or Transgender Status

The U.S. Supreme Court, in Bostock v. Clayton, issued a landmark decision, ruling that Title VII’s prohibition against sex discrimination prohibits discrimination on the basis of sexual orientation or transgender status. This decision affirms, as many Circuit Courts of Appeal have held, that Title VII of the Civil Rights Act of 1964 which prohibits employment discrimination based on sex extends to discrimination based on sexual orientation and gender expression.

In Bostock, the Supreme Court examined the cases of three separate plaintiffs. One plaintiff, Gerald Bostock worked in Georgia as a child welfare advocate for ten years and the County terminated him after he participated in a gay recreational softball league. His employer claimed his conduct was unbecoming of a county employee. The Eleventh Circuit dismissed his case, holding that Title VII’s prohibition of discrimination on the basis of sex did not prohibit employers from firing employees for being gay. The second plaintiff, Donald Zarda, lived in New York, and was fired just days after his employer found out he was gay. Splitting from the Eleventh Circuit, the Second Circuit held that he was protected under Title VII, relying on recent EEOC rulings. Though Mr. Zarda died tragically in a BASE-jumping accident, his estate continued the case on his behalf. Finally, the third Plaintiff, Aimee Stephens, worked at a funeral home in Michigan for several years when she informed her employer that she was transitioning from male to female and would live and work as a woman. Her employer terminated her soon after, not disputing that the basis for this termination was her announcement. The Sixth Circuit held that Title VII protected transgender individuals because an employer cannot discriminate on the basis of transgender status without imposing its stereotypical notions of how sexual organs and gender identity ought to align, therefore discriminating on the basis of stereotypes, an accepted basis for sex discrimination under Title VII. The Supreme Court granted certiorari to resolve this split in the circuit courts.

Supreme Court Justice Gorsuch, writing for the majority, held that an employer who fires an individual for traits it would not have questioned in members of a different sex is violating the protections afforded under Title VII — and that sex is undeniably in question when considering an individual’s sexual orientation or gender expression. He wrote:

“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.  Imagine an employer who has a policy of firing any employee known to be homosexual. The employer hosts an office holiday party and invites employees to bring their spouses. A model employee arrives and introduces a manager to Susan, the employee’s wife. Will that employee be fired? If the policy works as the employer intends, the answer depends entirely on whether the model employee is a man or a woman.  To be sure, that employer’s ultimate goal might be to discriminate on the basis of sexual orientation.  But to achieve that purpose the employer must, along the way, intentionally treat an employee worse based in part on that individual’s sex.”

Citing to existing Supreme Court precedent on “mixed motive” employment decisions, Justice Gorsuch noted that an employer cannot avoid liability by citing some other factor that contributed to the adverse employment decision, so long as the employee’s sex was one but-for cause of that decision.

While the EEOC had already taken the position that Title VII protects gay and transgender individuals, the EEOC guidance was not precedent until the Supreme Court’s decision in Bostock. Bostock thus gives employees of employers subject to Title VII (employers with 15 or more employees and state and federal governments regardless of number of employees)  an avenue under federal law to assert discrimination based on sexual orientation or gender expression, whereas previously a federal cause of action would only have been available to employees in a federal Circuit that followed the EEOC’s guidance.

In view of this decision, employers who have not yet done so should consider training their managers to ensure that they are aware that sexual orientation and gender expression discrimination is prohibited and to increase employee sensitivity and awareness. Employers should also evaluate whether their EEO anti-harassment policies and posters are up to date. It is also important for employers to examine their benefit policies, such as pension and health and welfare fund contributions and premium rates to ensure that they are free from unlawful discrimination.