On Monday, June 15, the US Supreme Court ruled in a 6-3 decision that, under Title VII of the Civil Rights Act of 1964, an employer who fires an employee for being gay or transgender violates that federal anti-discrimination statute.
In Bostock v. Clayton County, the Court considered three different cases that were all argued before the Court in October 2019. In doing so, the Court sought to resolve a split in the federal circuit courts over the scope of Title VII’s protections for homosexual and transgender individuals. In the underlying three cases, the Courts of Appeals for the Second (New York) and Sixth (Michigan) Circuits held that Title VII bars discrimination on the basis of sexual orientation and gender identity, while the Eleventh Circuit Court of Appeals (in a Georgia case) ruled that Title VII did not prohibit discrimination based on sexual orientation.
Writing for the Court, Justice Neil Gorsuch framed the issue as “whether an employer can fire someone simply for being homosexual or transgender.” Concluding that Title VII’s prohibition against discrimination “because of sex” should be broadly construed, he wrote that the answer to the foregoing question was “clear,” and that when “[a]n employer fires an individual for being homosexual or transgender,” the employer “fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary role in the decision, exactly what Title VII forbids.”
In responding to dissenting opinions filed by Justice Samuel Alito and Justice Brett Kavanaugh, the Court acknowledged “[t]hose who adopted the Civil Rights Act might not have anticipated their work would lead to this particular result.” However, Justice Gorsuch reasoned that “the limits of the drafters’ imagination supply no reason to ignore” what he believed was the clear, unambiguous language of a statute that prohibits employers from taking adverse employment actions “because of” sex. In other words, “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”
In dissent, Justice Alito criticized the textualist approach applied by the majority, contending the Court’s “duty is to interpret statutory terms to mean what they conveyed to reasonable people at the time they were written" (emphasis in original). Concluding that, when Congress enacted Title VII in 1964, reasonable individuals would not think that “discrimination because of sex meant discrimination because of sexual orientation—not to mention gender identity, a concept that was essentially unknown at the time,” Justice Alito viewed the majority as having engaged in improper legislating from the bench. Similarly, Justice Kavanaugh stated in his dissenting opinion that “the responsibility to amend Title VII belongs to Congress and the President in the legislative process, not to this Court.”
Monday’s decision represents a significant victory for LGBT employees. Prior to the Bostock ruling, 21 states—including New York, Massachusetts and Connecticut—and the District of Columbia expressly prohibited discrimination on the basis of sexual orientation and gender identity by statute or regulation, and a handful more provided some form of protection via agency interpretation or court ruling. In the rest of the country, gay, lesbian, and transgender individuals had no recourse against employment discrimination under the laws of the states in which they resided, and recent Congressional efforts to specifically add sexual orientation and gender identity to the list of protected characteristics under Title VII failed. With Bostock becoming the law of the land as to how Title VII should be interpreted, LGBT employees in all 50 states now enjoy protection against employment discrimination.
Furthermore, because Title VII can offer remedies (i.e., attorneys’ fees and punitive damages) that are often not afforded under many state anti-discrimination statutes, aggrieved employees can obtain relief previously unavailable to them even in states that expressly prohibit discrimination on the basis of sexual orientation and gender identity.
If you have any questions about the content of this alert, please contact Brian Culnan, partner, at bculnan@barclaydamon.com or another member of the firm's Labor & Employment Practice Area.