Supreme Court Rules Title VII Protects LGBTQ Workers

In a landmark 6-3 ruling on LGBTQ protections under Title VII, the U.S. Supreme Court put it bluntly: “An individual’s homosexuality or transgender status is not relevant to employment decisions.”

The case, Bostock v. Clayton County – which the Court decided in mid-June – addressed a long-brewing question: Does Title VII’s prohibition against employment discrimination “because of sex” bar employers from firing someone based on their sexual orientation or gender identity?

Writing for a six-member majority, Justice Neil Gorsuch said the answer to that question is “yes.”

An employer that terminates an individual for their LGBTQ status “fires that person for traits or actions it would not have questioned in members of a different sex,” Gorsuch wrote. “Sex plays a necessary and indistinguishable role in the decision, exactly what Title VII forbids.”

The ruling further clarifies that refusing to hire an LGBTQ individual someone because of their sexual orientation or gender identity also violates Title VII.

Three Situations, One Ruling

The decision involves three cases; Bostock, Altitude Express, Inc. v. Zarda, and R. G. & G. R. Harris Funeral Homes, Inc. v. Equal Employment Opportunity Comm’n.

Each one started the same way:

An employee fired a long-time employee shortly after the person revealed their LGBTQ status, and the termination was allegedly based on the individual’s LGBTQ status.

In the first case, Gerald Bostock worked for Clayton County, Georgia, as a child welfare advocate. After 10 years of successful performance, Bostock began participating in a gay softball league. Influential community members made disparaging comments about his sexual orientation and his participation in the league. He was then fired for unbecoming conduct.

Donald Zarda worked as a skydiving instructor at Altitude Express in New York. He was fired shortly after mentioning he was gay.

Aimee Stephens worked at R. G. & G. R. Harris Funeral Homes in Garden City, Michigan. When Stephens got the job, she presented as a male. Clinicians later diagnosed her with gender dysphoria and recommended she begin living as a woman. After six years on the job, Stephens wrote the funeral home a letter explaining that she was planning to live and work full time as a woman. The funeral home told her this wouldn’t work and fired her.

Court Resolves Split

Bostock, Zarda and Stephens sued under Title VII, alleging unlawful discrimination on the basis of sex.

In Bostock’s case, the U.S. Court of Appeals for the Eleventh Circuit held that Title VII doesn’t prohibit employers from firing employees for being gay. It said the case could be dismissed. In Zarda’s case, the Second Circuit concluded that sexual orientation discrimination does violate Title VII. That panel allowed Zarda’s case to proceed. In Stephens’ case, the Sixth Circuit held that Title VII bars employers from firing employees because of their transgender status. The Supreme Court agreed to review the cases to resolve the split over the scope of Title VII’s protection for LGBTQ individuals.

Court Looks at LGBTQ Status and Biological Distinctions

For the sake of the appeal, the six majority justices assumed, as the employers argued, that “sex” under Title VII refers only to the biological distinctions between males and females.

Even so, the majority found that “[I]t is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.” The justices gave several examples.

In the first one, the employer has two employees, both of whom are attracted to men. The employer views the employees as materially identical in all respects except that one is a man and the other is a woman.

If it fires the male employee for no reason other than the fact that he is attracted to men, the employer discriminates against this employee “for traits or actions it tolerates in his female colleague,” Gorsuch wrote.

In the second example, an employee fires a transgender person who was identified as a male at birth but who now identifies as a female.

“If the employer retains an otherwise identical employee who was identified as female at birth, the employer intentionally penalizes a person identified as male at birth for traits or actions that it tolerates in an employee identified as female at birth,” Gorsuch explained. Again, the “employee’s sex plays an unmistakable and impermissible role in the discharge decision,” he added.

In a third example, an employer has a policy of firing any employee known to be homosexual.

The employer has a party and invites employees to bring their spouses. A model employee arrives and introduces a manager to “Susan,” the employee’s wife. Will the employee be fired? If the policy works as the employer intends, then the answer depends entirely on whether the model employee is a man or a woman, Gorsuch said.

The employer’s ultimate goal might be to discriminate on the basis of sexual orientation, he pointed out. But to achieve that purpose, the employer has intentionally treated an employee worse based in part on that individual’s sex.

Hiring Decisions Covered

A fourth example makes clear that the ruling also holds that Title VII prohibits an employer from deciding not to hire someone because of their LGBTQ status. In the example, the employer asks applicants to check off a box if they are homosexual or transgender. The employer then has someone redact any information that could be used to discern sex. Gorsuch said this could be unlawful sex discrimination under Title VII.

The applicant’s sex “still weighs as a factor in the employer’s decision” because “there is no way for an applicant to decide whether to check the homosexual or transgender box without considering sex,” Gorsuch said. The question in Bostock was limited to whether Title VII prohibits firing someone because of their sexual orientation or gender identity. The ruling was clear that it does. The ruling was also clear that Title VII prohibits rejecting an applicant because of his or her sexual orientation or gender identity. As a result, Title VII provides protections for LGBTQ individuals.

But the six justices expressly declined to address whether other policies and practices – such as sex-segregated bathrooms – might or might not qualify as unlawful discrimination. These are questions for future cases, the justices said.

They also recognized employers’ concerns that complying with Title VII’s requirement in cases like this one may require some employers to violate their religious convictions.

In fact, Harris Funeral Homes unsuccessfully argued in the lower courts that the Religious Freedom Restoration Act (RFRA) supersedes Title VII. With limited exceptions, the RFRA prohibits the federal government from substantially burdening a person’s exercise of religion. Harris Funeral Homes declined to seek review from the Supreme Court.

And no other religious liberty claim was before it.

So the question of how an employer’s religious liberty interests intersect with Title VII is one for future cases, the justices said.

Bostock v. Clayton County, Georgia, 140 S.Ct. 1731 (U.S. 2020).