SCOTUS Holds That Title VII’s Prohibition on Sex-Based Discrimination Also Prevents Discrimination Against Homosexual and Transgender People
On June 15, 2020, the Supreme Court of the United States published an opinion in Bostock v. Clayton County resolving the dispute among the Courts of Appeals over the scope of Title VII’s protections for homosexual and transgender persons. In the 6-3 decision, the Court held Title VII prohibits an employer from discriminating against an employee, job candidate, or prospective employee for being homosexual or transgender.
Title VII of the Civil Rights Act of 1964 has always prevented employers from discriminating against workers on the basis of sex, religion, race, color, or national origin. Bostock explored whether the prohibition in Title VII of discrimination on the basis of “sex” also would prohibit discrimination on the basis of sexual orientation or gender identity. In Bostock, the Supreme Court ruled in the affirmative and concluded the clause in Title VII that prohibits discrimination on the basis of sex also prohibits discrimination on the basis of sexual orientation or gender identity.
Although the case bears the name of only one plaintiff, Gerald Bostock, a former child welfare advocate in Georgia fired shortly after his employer became aware that he had joined a gay softball league, the Court actually considered two other cases in conjunction with Mr. Bostock’s. The facts of all three claims were virtually identical in that each employer fired a long-time employee shortly after the employee revealed their status as homosexual or transgender, and there was no reason for the termination other than the employee’s homosexuality or transgender status.
In extending Title VII’s protection against discrimination on the basis of sex to include sexual orientation and transgender status, the Court relied upon the inextricable link between an individual’s sexual orientation or transgender status and their sex. The Court reasoned that when an employer discriminates against a worker for being homosexual or transgender, the employer is implicitly concluding that the gay or transgender person’s behavior is unacceptable for a member of that worker’s sex. Thus, the Court concluded that inherent within discrimination against a worker on the basis of sexual orientation or transgender status is discrimination against the worker on the basis of sex, which is prohibited by Title VII.
What does this mean for employers who are subject to Title VII?
- An employer may not discriminate against an employee, job candidate, or prospective employee for being homosexual or transgender.
- Sex does not need to be the sole or primary reason for the employer’s adverse action against an employee to create liability under Title VII. If sex, which includes sexual orientation and gender identity, is even one factor in an employer’s decision to take an adverse action against a worker then that is enough to potentially create liability under Title VII.
Please contact a member of our employment law team if you have questions about the Bostock opinion analyzed in this blog post and whether your company might need to revise employment policies or practices in light of this ruling.