In a landmark 6-3 ruling issued on Monday June 15, 2020, the United States Supreme Court held that an employer who fires an individual for being homosexual or transgender violates Title VII of the Civil Rights Act of 1964. The Court issued the decision in Bostock v. Clayton Cty., Georgia, No. 17-1618, 2020 WL 3146686 (U.S. June 15, 2020), which is available
Looking to the statute’s text and Court precedent, the majority held that discrimination based on homosexuality or transgender status necessarily entails discrimination “based upon sex.” The Court made clear that if an employer would not have discharged an employee “but for” that individual’s sex, Title VII’s causation standard is met and liability may attach.
Accordingly, it is inconsequential whether other factors, such as motive, may have contributed to the employment decision. An employer who intentionally fires an individual homosexual or transgender employee in part because of that individual’s sex violates Title VII, even if the employer subjects all similarly situated employees to the same practice.
The Court’s ruling is significant. Title VII, which prohibits sex and other forms of discrimination, historically was not interpreted to cover LGBTQ employees. The Court granted certiorari in three cases, one of which arose out of the Eleventh Circuit (which held the law does not prohibit employers from firing employees for being gay) and two from the Sixth and Second Circuits (which held the law bars employers from firing employees because of their sexual orientation or transgender status).
Before Monday, LGBTQ workers were protected in about half of the states through their states laws, as well as some local statutes, including the New York City Human Rights Law. New Jersey and New York state laws also protect LGBTQ workers from discrimination based on that status. The Court’s ruling gives rise to a federal cause of action against any employer covered by the Title VII – including most employers with 15 or more employees.
The Court left for another day how the First Amendment or the Religious Freedom Restoration Act of 1993, doctrines protecting religious liberty, interact with Title VII.
Employers should be aware of this landmark decision and consider how it impacts their organization. Employers should update their handbooks and policies to ensure these new federal protected characteristics are included, as well as incorporate the ruling in employee training on combating discrimination/harassment in the workplace. Employers may also want to consider additional training to raise awareness and sensitivity toward transgender employees, and review other policies (for example, dress codes) to ensure they do not inadvertently discriminate on the basis of sex.