Key Takeaways

• The U.S. Supreme Court ruled 6-3 that  Title VII’s employment discrimination protections extend to sexual orientation and gender identity

• In the majority opinion, Justice Gorsuch conceded that “sex” in 1964 meant the biological distinction between a male and a female, but  argued that  homosexuality and transgender status are “inextricably bound up with sex”

• The court relied on the but-for causation requirement under Title VII’s “because of” language, meaning the employer cannot avoid liability because other factors also played into its decision

On June 15, 2020, the Supreme Court of the United States issued an historic opinion addressing a split among Federal Circuit Courts of Appeal regarding the question of whether an employer violates Title VII when it fires an employee for being gay or transgender. This issue arrived at the U.S. Supreme Court by way of cases from three circuits: Bostock v. Clayton County, Georgia (11th Circuit); Altitude Express, Inc., et al. v. Zarda, et al. (2nd Circuit); and, R.G. & G.R. Harris Funeral Homes, Inc. v. Equal Employment Opportunity Commission et al. (6th Circuit). The court held, in a 6-3 decision, that these actions by an employer do, indeed, violate Title VII.

The opinion, authored by Justice Gorsuch, left no room for misunderstanding the court’s holding when stating, “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.”

Enacted in 1964, Title VII, in pertinent part, makes it unlawful for an employer to “discriminate against an individual…because of such individual’s…sex[.]” The court addressed these key statutory terms while laying the foundation for its holding. First, the court briefly addressed “sex” by noting the parties conceded that “sex,” in 1964, meant the biological distinction between a male and a female. Second, the court explained the decision was made using the but-for causation requirement under Title VII’s “because of” language. This standard means the employer cannot avoid liability because other factors also played into its decision because “[s]o long as the plaintiff’s sex was one but-for cause of that decision, that is enough to trigger the law.” Third, the court discussed that “discriminate” largely means the same thing today as it did in 1964, i.e., treating one person differently as compared to others. However, the opinion also briefly recognized another possible interpretation of discrimination, which entails the practice of disparate treatment categorically as opposed to individually. So, the ultimate question became whether Title VII focuses on individual or categorical discrimination. The court did not have to look any further than the language of Title VII itself to find that the focus is on the individual, not groups. Thus, if an individual is fired based in part on their sex, then Title VII applies and liability may attach.

After setting the stage, the court applied Title VII’s “simple but momentous” message to these cases, stating, “An individual’s homosexuality or transgender status is not relevant to employment decisions. That’s because it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.” Put another way, homosexuality and transgender status are not vaguely connected to sex, but are “inextricably bound up with sex.”

The employers in all three cases did not dispute that each employee was fired for being either homosexual or transgender. Instead, they argued that the drafters of Title VII could not possibly have imagined that “sex” would include sexual orientation or gender identity, and if those categories were intended to be protected, then Congress would have enumerated them in Title VII (when initially drafted, or with some subsequent amendment). The court’s majority was not persuaded by these arguments, explaining from the outset of its opinion that “[a]n 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.”

The court concluded its opinion addressing some of the employers’ concerns raised in oral argument, and that those issues (e.g., sex-segregated bathrooms and locker rooms, an employer’s religious liberties) are for future cases to decide, as those specific issues were not before the court. Those issues will likely form the next battleground of Title VII litigation on the basis of sex.

Employers in every state should review their handbooks to ensure compliance with this new protection for individuals on the basis of their sexual orientation and/or gender identity. Twenty-three states and the District of Columbia already expressly provide protection on the basis of sexual orientation, and 22 states expressly provide the same protections on the basis of gender identity or expression. For employers in the remaining 27 states, employers should certainly update their employee handbooks to comply with the court’s holding, and evaluate whether training and education for their current employees is in order. Regardless of applicable state-level protections, however, all employers should anticipate increased scrutiny of policies, handbooks, and personnel actions in the wake of this monumental ruling.

For more information or immediate guidance, contact:

• Nolan McCready
• Kristin Klein Wheaton
• Caroline J. Berdzik
• Peter J. Woo
• Or another member of Goldberg Segalla’s Employment and Labor practice