Client Alert
June 15, 2020

The Supreme Court Protects Gay and Transgender Employees From Discrimination 
On June 15, 2020, the United States Supreme Court published a monumental decision ruling that Title VII of the Civil Rights Act (“Title VII”) bans workplace discrimination based on sexual orientation and gender identity. Discriminating against an employee in their terms or conditions of employment because of their sexual orientation or gender identity is now unlawful everywhere in the United States.

Under Title VII, it is unlawful for an employer to “fail or refuse to hire or to discharge an individual, or otherwise discriminate against any individual … because of such individual’s race, color, religion, sex or national origin.” For several decades following Title VII's passage in 1964, every court to consider the question said the law's ban on sex-based bias did not cover gay workers, and most said it did not protect transgender workers. But in the last decade or so, regulators, district courts and circuit courts throughout the country began revisiting the issue, and changing the status quo. The result was conflicting decisions on the issue, and a continued lack of nationwide protection for gay and transgender individuals.

In laying this issue to rest, the Court reasoned that “[b]ecause discrimination on the basis of homosexuality or transgender status required an employer to intentionally treat individual employees differently because of their sex, an employer who intentionally penalizes an employee for being homosexual or transgender also violates Title VII.” Accordingly, when an employer terminates an employee for being homosexual or transgender, that employer terminates them “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.”

The majority opinion  in Bostock v. Clayton County was authored by Justice Neil M. Gorsuch, and joined by Chief Justice John G. Roberts Jr. and Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan. Justices Samuel A. Alito, Clarence Thomas and Brett M. Kavanaugh dissented.  

*        *        *

If you have questions or would like additional information, please contact EGS’s Employment Law Practice Group Leader, Amanda M. Fugazy at afugazy@egsllp.com or the primary EGS attorney with whom you work.    
This memorandum is published solely for the informational interest of friends and clients of Ellenoff Grossman & Schole LLP and should in no way be relied upon or construed as legal advice.