On June 15, 2020, the United States Supreme Court issued its highly anticipated decision in Bostock v. Clayton County Board of Commissioners, No. 17–1618, holding 6-3 that discrimination on the basis of sexual orientation or transgender status is a form of sex discrimination prohibited by Title VII of the Civil Rights Act of 1964. The decision settles a significant dispute among the Circuit Courts and marks a notable expansion to the reach of Title VII.
In reaching its decision, the Supreme Court resolved two cases where gay men alleged they were fired because of their sexual orientation, and a third case where a transgender woman alleged her employer fired her because of her transgender status. In the first sexual orientation case (Bostock), a child welfare services coordinator, Gerald Bostock, sued the county after he was fired from his position as a child welfare advocate for the county. Mr. Bostock alleged that the county terminated his employment because of his sexual orientation when word got out that he had joined a gay recreational softball league. In the second sexual orientation case (Zarda), a skydiving instructor also attributed his discharge to his sexual orientation. His dismissal followed a complaint from a female customer who took issue with a comment from the skydiving instructor that he was “100 percent gay.” Finally, in the transgender case (R.G. & G.R. Harris Funeral Homes, Inc.), the employer fired an employee who initially presented as a male at the time of hire, but later informed her employer that she planned to “live and work full-time as a woman.”
Writing for the majority, Justice Neil Gorsuch framed the question before the Court as follows: “Today, we must decide whether an employer can fire someone simply for being homosexual or transgender.” Answering this question in the negative, Justice Gorsuch concluded as follows: “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.” Justice Gorsuch explained that Title VII’s prohibition against sex discrimination extends to sexual orientation and transgender status because “discrimination based on homosexuality or transgender status necessarily entails discrimination based on sex; the first cannot happen without the second.”
Justice Gorsuch acknowledged that Congress may not have specifically intended or envisioned that adopting the Civil Rights Act of 1964 would lead to protections for homosexuals or transgender persons; however, Justice Gorsuch reasoned that Congress was not thinking about many of the Act’s consequences, “including its prohibition against discrimination on the basis of motherhood or its ban on the sexual harassment of male employees.” Justice Gorsuch added that “the limits of the drafter’s imagination supply no reason to ignore the law’s demands.”
Based on the Supreme Court’s decision in Bostock, employers should consider updating their policies and training materials to ensure that employees and supervisors understand that federal law prohibiting discrimination on the basis of sex now includes discrimination on the basis of sexual orientation and transgender status.