"The answer is clear": Title VII Protects Gay and Transgender Employees from Employment Discrimination
Title VII of the Civil Rights Act of 1964 prohibits discrimination on the basis of sex. The U.S. Supreme Court held Monday that this prohibition includes discrimination based on sexual orientation and gender identity. This historic decision extends Title VII’s protections to gay and transgender employees after decades of failed federal legislative attempts to do the same thing.
Writing for the 6-3 majority, Justice Neil M. Gorsuch reasoned, “When an employer fires an employee for being homosexual or transgender, it necessarily intentionally discriminates against that individual in part because of sex.” Thus, the Court held, “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.”
Consider, for example, an employer with two employees, both of whom are attracted to men. The two individuals are, to the employer’s mind, materially identical in all respects, except that one is a man and the other a woman. If the employer fires the male employee for no reason other than the fact he is attracted to men, the employer discriminates against him for traits or actions it tolerates in his female colleague.
The three cases the Court considered in Bostock v. Clayton County were brought on behalf of three individuals, all of whom were long-term employees fired on the basis of their being either gay or transgender. That is, there was no factual question about the reason for the terminations.
The Court’s ruling extends Title VII’s sex discrimination prohibition to millions of Americans living in states that did not independently pass sexual orientation or gender identity statutes previously. Prior to the Court’s ruling, employers in 26 states were not prohibited from taking adverse action based on workers being gay or transgender. Employers in those states will now be subject to Title VII liability for workplace discrimination based on their employees’ sexual orientation and/or gender identity, the same statute that prohibits race, color, religion and national origin discrimination.
The Court’s holding places new restrictions on employers, many of which may now need to reconsider their employment practices. Although the Court based its holding on the “more traditional but-for causation standard,” the Justices acknowledged Congress’ 1991 amendments to Title VII, which “allow a plaintiff to prevail merely by showing that a protected trait like sex was a ‘motivating factor’ in a defendant’s challenged employment practice.” The Court explained with respect to the but-for standard that there may be more than one “but-for” cause of a person’s termination.
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.
In its ruling, the Court held that employers that “discharge” or “fail or refuse to hire” workers based on gender identity or sexual orientation violate Title VII, but explicitly left open the question of what conduct might lead to a finding that an employer “otherwise . . . discriminate[d] against” members of the LGBT community. These issues will largely be left to the lower courts.
Three Justices dissented from the majority opinion, noting the potential onslaught of new litigation and criticizing their colleagues for what they perceived as an encroachment on Congress’ legislative role. Justice Samuel A. Alito Jr. wrote a dissent joined by Justice Clarence Thomas, arguing that the common understanding of sex discrimination in 1964 was bias against women or men and did not encompass discrimination based on sexual orientation and gender identity. In his dissent, Justice Brett M. Kavanaugh took a similar position, criticizing the majority opinion for interpreting the term “sex” literally instead of considering the term’s “ordinary meaning.”
Recognizing that some would view the ruling as an unanticipated extension of Title VII, Justice Gorsuch explained that “[t]hose who adopted the Civil Rights Act might not have anticipated their work would lead to this particular result. . . . But the limits of the drafters’ imagination supply no reason to ignore the law’s demands.” “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.”
The Court attempted to cabin the intended scope of the decision, indicating that the majority’s holding was a limited one. “We do not purport to address bathrooms, locker rooms or anything else of the kind.” “Whether other policies and practices might or might not qualify as unlawful discrimination or find justifications under other provisions of Title VII are questions for future cases, not these.”
Please contact Stephanie Poucher or any other member of Phelps’ Labor and Employment team if you have questions or need compliance advice and guidance.
