US Supreme Court Ruling on LGBTQ+ Workers
On June 15, 2020, the Supreme Court of the United States (SCOTUS) issued a landmark decision protecting the rights of LGBTQ+ workers. In its decision, Justice Gorsuch, writing for a 6-3 majority, succinctly held, “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.”
Put simply, SCOTUS’s opinion expands Title VII’s protections to gay and transgender workers, forbidding employers from making adverse employment decisions premised on an employee’s sexual orientation or gender identity/expression.
The Court’s decision in Bostock v. Clayton County clarified confusion among federal appellate courts regarding whether sexual orientation and gender identity/expression were protected under Title VII, a portion of the federal Civil Rights Act of 1964 that prohibits employment discrimination on the basis of race, color, religion, sex, or national origin.
The Bostock decision also resolved three separate cases, wherein the Eleventh Circuit held that Title VII did not forbid employment discrimination based on an employee’s sexual orientation or gender identity/expression while the Second and Sixth Circuits held that Title VII did forbid such discrimination.
In the wake of SCOTUS’s opinion, no confusion remains: “An employer who fires an individual merely for being gay or transgender violates Title VII.” This holding is premised on the fact that “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.” For example, the Court explained that “[i]f the employer fires [a] male employee for no reason other than the fact he is attracted to men, the employer discriminates against him for traits or actions it tolerates in his female colleague.”
In addition to determining that Title VII’s protections encompass sexual orientation and gender identity/expression, SCOTUS clarified that if an employee’s sexual orientation or gender identity/expression plays any role in an adverse employment decision, the decision is wrongful under Title VII. As Justice Gorsuch explained, “it [does not] matter that, when an employer treats one employee worse because of that individual’s sex, [that] other factors may contribute to the decision.” If an adverse employment action is premised—even in part—on an employee’s sexual orientation or gender identity/expression, the adverse employment action is wrongful under Title VII.
Finally, Justice Gorsuch noted that an employer could not escape liability by firing all males and females who are gay and/or transgender, foreclosing that argument by stating “[a]n employer musters no better a defense by responding that it is equally happy to fire male and female employees who are homosexual or transgender.”
In the wake of SCOTUS’s decision, employers must refrain from taking adverse employment actions against employees based on employees’ sexual orientation or gender identity/expression. It is now clear that “[a]n employer who fires an individual merely for being gay or transgender defies the law” and thereby opens itself to liability under Title VII.