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The U.S. Supreme Court Holds: Title VII Prohibits Employment Discrimination On The Basis Of Sexual Orientation Or Transgender Status

By Lynn S. Kopon

On June 15, 2020, the United States Supreme Court ruled, in a 6-3 opinion, that an employer who fires an individual merely for being gay or transgender violates Title VII of the Civil Rights Act. Bostock v. Clayton County, No. 17-1618. The Court decided that the well-established Title VII protections against discrimination on the basis of sex includes protections for sexual orientation and transgender status. “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.” Supra, p. 2. Justice Neal Gorsuch, writing for the majority in the case, stated: “At bottom, these cases involve no more than the straightforward application of legal terms with plain and settled meanings.” Supra, p. 12.

Three cases from the lower courts were consolidated in the Supreme Court’s Bostock decision. In the Bostock case, Gerald Bostock worked for 10 years as a child welfare advocate in Clayton County, Georgia before he was fired for being homosexual. Donald Zarda worked for Altitude Express in New York as a skydiving instructor for several seasons before was fired for being gay. Aimee Stephens worked at Harris Funeral Home in Michigan. Ms. Stephens presented as male when she was hired but after six years with the company she informed her employer that she planned to live and work as a woman after she returned from vacation. She was fired. Each employee brought suit under Title VII alleging discrimination on the basis of sex. In Mr. Bostock’s case, the Eleventh Circuit held that employers may fire an individual for being gay because the law did not protect individuals based on sexual orientation. The Second Circuit, in Mr. Zarda’s case, held that Title VII did protect individuals based on their sexual orientation and allowed his case to proceed. In Ms. Stephens’ case, the Sixth Circuit held that Title VII bars employers from firing employees because of their transgender status. The Supreme Court consolidated these cases because they all presented the same issue: whether Title VII’s prohibition against discrimination on the basis of sex includes sexual orientation and transgender status as part of the protected class.

Title VII states that it is unlawful for an employer to fail or refuse to hire or to discharge any individual or otherwise to discriminate against any individual because of such individual’s race, color, religion, sex or national origin. 42 U.S.C. 2000e-2(a)(1). Justice Gorsuch explained that as long as “sex” was at least one reason for the adverse employment decision, this conduct is prohibited by Title VII. The question employers must ask is whether “but-for” the employee’s sex, would the same decision have been made. As in other Title VII cases, as long as the protected class is at least one “but-for” factor for the employer’s adverse employment decision, that is enough to invoke the protections of Title VII.

The firing of the gay and transgender employees in these cases was discrimination on the basis of sex because men and women were treated differently for identical actions. Justice Gorsuch wrote that homosexuality or transgender status are included in Title VII’s protection against sex discrimination “[n]ot because homosexuality or transgender status are related to sex in some vague sense or because discrimination on these bases has some disparate impact on one sex or another, but because to discriminate on these grounds requires an employer to intentionally treat individual employees differently because of their sex. Supra, p. 10. So, for example the Court noted, if two employees, a man and a woman, were both attracted to men, the man would be fired solely because he was a man. In the situation involving a transgender employee, a decision to fire that employee on the basis of her transgender status is made solely because she identified as a male at birth whereas an employee, who identified as female at birth, would not suffer adverse employment consequences.

The rule employers should remember from this case is that an employer violates Title VII when it intentionally fires or otherwise discriminates against an individual employee based, at least in part, on sex. As the Supreme Court has long held, an individual employee’s sex is “not relevant to the selection, evaluation, or compensation of employees.” Supra p. 9, citing Price Waterhouse v. Hopkins, 490 U.S. 228, 239 (1989).

While this decision is notable for its clarification that sexual orientation and transgender status are included in Title VII’s prohibitions against discrimination on the basis of “sex,” it leaves intact the long-standing analysis of Title VII cases and the protections afforded those in protected classes. This case does not impact the Title VII exception for religious organizations.

Justice Gorsuch noted that “the employers fear that complying with Title VII’s requirement in cases like ours may require some employers to violate their religious convictions…But worries about how Title VII may intersect with religious liberties are nothing new; they even predate the statute’s passage.” Supra, p. 32. The Court noted that Title VII contains an express exemption for religious organizations. That exemption states: “This subchapter shall not apply to an employer with respect to the employment of aliens outside any State, or to a religious corporation, association, educational institution, or society with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution, or society of its activities.” 42 U.S.C. 2000e-1(a). In addition, the law has recognized a “ministerial exception” to the requirements of Titles VII, which is rooted in the First Amendment Free Exercise of Religion clause, and bars application of employment discrimination laws “to claims concerning the employment relationship between a religious institution and its ministers.” Supra, p. 32, citing Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 565 US 171, 188 (2012). This ministerial exception is applicable only to those employees who serve in positions that could be considered “ministerial” by the religious organization employing them. If the position is found to be “ministerial,” the exceptions to Title VII protections, as well as other Federal discrimination statutes, are broad. Justice Gorsuch also mentions the Religious Freedom Restoration Act of 1993 (RFRA), 42 USC Sec. 2000bb et. seq. “That statute prohibits the federal government from substantially burdening a person’s exercise of religion unless it demonstrates that doing so both furthers a compelling governmental interest and represents the least restrictive means of furthering that interest.” Supra, p. 32. As the Court noted, how these various statutes and doctrines interact with Title VII protections was not before the Court in the Bostock case.

Should you have any questions regarding these issues, please contact Andrew Kopon at [email protected] or Colette Kopon at [email protected].