Supreme Court Finds Discrimination Against LGBTQ Individuals in Employment a Violation of Title VII

Contributed by Megan Muoio, June 23, 2020

On Monday, June 15, 2020, the Supreme Court of the United States, in a 6-3 decision, handed down one of the most significant employment discrimination cases in recent history, holding that Title VII of the Civil Rights Act of 1964, which prohibits discrimination in employment on the basis of sex extends Title VII protection to gay and transgender employees. The decision was made in the case Bostock v. Clayton County, Georgia, an appeal from a decision of the U.S. Court of Appeals for the Eleventh Circuit.

Gerald Bostock was a child-welfare-services coordinator for Clayton County, Georgia who had been terminated for conduct “unbecoming” of a county employee after he began participating in a gay recreational softball league. The Eleventh Circuit found that Title VII did not bar Bostock’s termination because of his sexual orientation. On appeal to the Supreme Court, Bostock was consolidated with two other Title VII cases – Altitude Express, Inc. et al. v. Zarda et. al. on appeal from the U.S. Court of Appeals for the Second Circuit, and R.G. & G.R. Harris Funeral Homes Inc. v. Equal Opportunity Employment Commission et al. on appeal from the U.S. Court of Appeals for the Sixth Circuit. In Zarda, the Second Circuit found that Altitude Express, a skydiving company, had violated Title VII when it had terminated employee Donald Zarda after he mentioned to a client that he was gay. In Harris, the Sixth Circuit permitted the EEOC to proceed with a Title VII claim by Aimee Stephens, a trans woman, who had been terminated by her employer on the basis of her gender identity.

In the majority opinion, Justice Neil Gorsuch wrote that Title VII’s prohibition against discrimination “on the basis of sex” necessarily precluded discrimination against gay and transgender individuals. In each of the cases before the Court, the employee was terminated “for traits or actions it would not have questioned in members of a different sex.” Stated another way, Justice Gorsuch reasoned that if an employer terminates a male employee because he is attracted to men but would not have terminated a female employee who was attracted to men, the employer has made a determination on the basis of the male employee’s sex in violation of Title VII.

Justice Gorsuch, along with the five Justices who concurred with the majority opinion, disregarded employers’ arguments that the legislative intent of Congress in passing Title VII was not to address discrimination against the LGBTQ community. Because the plain language of Title VII was unambiguous, there was no need to address the historical basis for the enactment of Title VII or dissect its legislative history. He concluded that, despite the fact that few people in 1964 may have expected Title VII to apply to discrimination on the basis of sexual orientation or gender identity, “we should not dare to admit that it follows ineluctably from the statutory text.”

Finally, Justice Gorsuch dismissed the concerns raised by the dissenting Justices of the Supreme Court – Justice Samuel Alito, Justice Clarence Thomas, and Justice Brett Kavanaugh – that the Court’s ruling would open a pandora’s box of related employment issues, such as work dress codes or employee bathrooms, and implicate similar provisions in other federal statutes, because those issues were not before the Court. He likewise disregarded arguments about employers’ contentions that the ruling would infringe on the free exercise of their religious beliefs, pointing out that none of the employers in the three cases before the Court raised claims based on U.S. Constitution’s First Amendment free exercise of religion clause or Religious Freedom Restoration Act. The Court’s unwillingness to engage on these issues sets up future clashes before the Court, as it will inevitably address religious employers’ claims in future cases.

For employers in New York, who are currently barred from making employment decisions based on employees’ sexual orientation or gender identity due to the New York Human Rights Law, the application of Title VII to LGBTQ employees will not require a change in any employment policies. However, for those employers in the 22 states that did not provide full employment protection to LGBTQ employees, they will be required to immediately revise their employment practices to comply with the Supreme Court’s ruling.

Also last week at the Supreme Court, President Donald Trump’s attempt to end the Deferred Action for Childhood Arrivals (DACA) program was thwarted in Department of Homeland Security v. Regents of the University of California. In a 5-4 decision written by Chief Justice John Roberts, the Court held that the Department of Homeland Security failed to comply with the Administrative Procedure Act when it attempted to end the DACA program in 2017. The federal government will have another opportunity to end the program, although it is unlikely that any such action will be successfully carried about before the election in November.

In the conclusion of a busy week at the Court, the Justices declined to grant petitions for certiorari in two hot-button areas. First, the Court declined to take up any of the three cases involving police officer’s qualified immunity against civil suits. In light of the ongoing protests related to the killing of George Floyd, those interested in limiting police officer immunity were hopeful that the Court would reexamine its precedent in Pearson v. Callaghan. However, the Court, hesitant to wade into any ongoing controversy, denied all three petitions.Second, the Court declined to take up any of the ten petitions involving the Second Amendment right to bear arms. Each of the petitions involved state law that limited gun rights and, in light of the denials, each law will remain on the books.