Grace A. Byrd, Jordan E. Pace
Employment and Labor
June 16, 2020
On June 15, 2020, the Supreme Court issued a long-awaited
opinion answering a hotly debated question:
does Title VII of the Civil Rights Act of 1964 prohibit employers
from discriminating against employees on the basis of sexual orientation or
gender identity/expression? The Court answered in the affirmative, holding that
Title VII’s prohibition on sex discrimination means that an employer
cannot discriminate on the basis of sexual orientation or gender
For employers in New York and New Jersey, where state and
local anti-discrimination laws already expressly prohibit discrimination on
these bases, the Court’s decision is not as momentous as it is in the numerous states
and localities without protections for gay, lesbian, and transgender
employees. Still, New York and New
Jersey employers are likely to see some effects and should be mindful of the
Court’s decision as it may have implications on the Court’s interpretation of
Title VII on other grounds.
The Court’s opinion, Bostock
v. Clayton County, Georgia, addressed three consolidated cases: one from Georgia where a county fired a
public employee after he joined a gay softball league; one from New York where
a skydiving school fired an instructor after he mentioned that he was gay; and
one from Michigan where a funeral home fired an employee who presented as a
male when hired but later announced her intention to live and work as a woman. Each employer conceded that they terminated
their respective employee for being gay, lesbian, or transgender.
Lower federal courts were split on the legality of the
terminations. One appellate court permitted an employee’s case to be dismissed,
finding that Title VII does not prohibit employers from firing employees for
being gay; the other two appeals courts permitted the cases to proceed.
The Court’s Opinion
Justice Neil Gorsuch authored the Court’s opinion, which
boils down to the recognition that “it is impossible to discriminate against a
person for being homosexual or transgender without discriminating against that
individual based on sex.” In other
words, “[s]ex plays a necessary and undisguisable role in the decision, exactly
what Title VII forbids.” Thus,
discrimination on the basis of sexual orientation or gender identity/expression
is discrimination on the basis of sex.
This is consistent with prior decisions recognizing that discrimination
that considers sex among other reasons violates Title VII, such as
discriminatory policies based on motherhood. Moreover, Justice Gorsuch wrote, an individual’s sexual
orientation or gender identity/expression “is not relevant to employment
The fact that a policy impacts gay, lesbian, or transgender
employees of all sexes equally is irrelevant.
The Court used the example of two employees, one male and one female,
who are each attracted to men. An
employer policy discriminating against gay or lesbian employees of all sexes
would negatively impact the male and not the female, resulting in
discrimination on the basis of sex.
Similarly, if an employer favors a born-female employee over a
transgender female employee, that employer is discriminating on the basis of
In addition to its core holding, the Court’s opinion is
important for two of its themes. First,
the Court recognized that the drafters of Title VII likely did not
anticipate the result in Bostock. “But,” as Justice Gorsuch wrote, “the limits
of the drafters’ imagination supply no reason to ignore the law’s demands.” In other words, the language of
Title VII should not be limited to the original intentions of the
drafters. This leaves the door open to
further expansion of federal anti-discrimination law. Second, the Court emphasized a key rule for Title VII
and similar laws: discrimination based
on a protected characteristic need not be the sole or primary basis underlying
a decision for that decision to be illegal.
The Court stated that it is unimportant if another, non-protected trait
is a significant factor in an adverse employment action.
In addition to Justice Gorsuch (who was nominated to the
Court by President Donald Trump), Chief Justice Roberts, and Justices Ginsburg,
Breyer, and Kagan joined in holding that the terminations violated federal
law. Justices Thomas, Alito, and
Kavanaugh dissented, arguing principally that the Court was legislating an
expansion of Title VII.
For employers in New York, New Jersey, and a number of other
states and localities, state and local laws have long prohibited them from
discriminating on the basis of sexual orientation or gender
identity/expression. Where those
employers will likely see a difference is in enforcement by the federal U.S.
Equal Employment Opportunity Commission (“EEOC”), increasing resort by
plaintiffs to agency adjudication through the EEOC, and increased legal filings
in federal, rather than state, court. Given
the procedural hurdles for pursuing Title VII claims, plaintiffs may nonetheless
stick primarily with state and local claims.
Certainly, the biggest difference will be seen by employers with
employees in states and localities (e.g., Texas) without legal protections
covering sexual orientation or gender identity/expression discrimination.
Employers can also expect to see increasing attempts by
plaintiffs to bring additional protected characteristics within the scope of
Title VII given the Court’s broad reading of the law and unshackling of
the law from the drafters’ intentions.
We are available to provide guidance on compliance with
Title VII in light of this opinion and the ever-expanding set of federal,
state, and local employment and anti-discrimination laws.
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