On June 15, 2020, the United States Supreme Court, in Bostock v. Clayton County, Georgia, No. 17-1618, held that Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating against workers for being gay or transgender.  Justice Neil Gorsuch, writing for the six justice majority, addressed the applicability of Title VII to the cases of three long-time employees who were all terminated from their respective jobs shortly after they revealed they were gay or transgender, and for no reason other than their sexual orientation.

The Court grounded its decision in the concept that discrimination against an individual for being gay or transgender is impossible without discriminating against that individual based on sex. Indeed, the Court rejected the notion that because Congress did not specifically address sexual orientation or transgender status in Title VII, Title VII does not protect gay or transgender employees. Title VII makes it unlawful for an employer to “fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex or national origin.”  The Court reasoned that an employer violates the plain language of Title VII when it discharges an employee based in-part on sex. 

Because Title VII prohibits discrimination “because of” sex, among other things, Justice Gorsuch found that the prohibition on discrimination against an employee because they are gay or transgender is logical and straightforward: “If the employer intentionally relies in part on an individual employee’s sex when deciding to discharge the employee—put differently, if changing the employee’s sex would have yielded a different choice by the employer—a statutory violation has occurred.” More simply put, an employer that intentionally penalizes “men for being attracted to men and women for being attracted to women” does so because of the individual sex.  Likewise, “[b]y discriminating against transgender persons, the employer unavoidably discriminates against persons with one sex identified at birth and another today.” It is impossible then to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.

Notwithstanding the growing number of states, including Colorado, that have enacted legislation to protect gay and transgender employees in recent years, the Court’s decision bans sexual orientation and transgender-based discrimination nationwide. Employers should make certain to update their policies and practices to reflect this change.

Supreme Court, Civil Rights, Sexual Orientation

Author: D.J. Goldfarb

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