"In Title VII, Congress adopted broad language making it illegal for an employer to rely on an employee’s sex when deciding to fire that employee. We do not hesitate to recognize today a necessary consequence of that legislative choice: An employer who fires an individual merely for being gay or transgender defies the law.”
Today the United States Supreme Court issued an historic opinion in the case of Bostock v. Clayton County, Georgia, holding that Title VII of the Civil Rights Act of 1964 prohibits discrimination in employment on the basis of sexual orientation or transgender status.
The case involved employment discrimination claims brought by three individuals. Gerald Bostock filed suit after he was fired by Clayton County for “conduct unbecoming of” a county employee, shortly after he had joined a gay recreational softball league. Donald Zarda, similarly, was fired by his employer - Altitute Express – only days after he mentioned that he was gay. Aimee Stephens, a transgender woman, was fired by R.G. & G.R. Harris Funeral Homes when she informed her employer of her intention to live and work full-time as a woman. Each of these employees were long-term employees who alleged that
Importantly, the Bostock opinion clarifies what is known as a “split” in the circuit courts. A circuit split occurs when different federal appellate circuits interpret Federal statutes differently. In Mr. Bostock’s case, the Eleventh Circuit (whose jurisdiction includes district courts in Alabama, Florida, and Georgia) held that Title VII’s prohibition of discrimination on the basis of sex did not prohibit discrimination on the basis of sexual orientation. In Mr. Zarda’s case, the Second Circuit (whose jurisdiction includes district courts in Connecticut, New York, and Vermont) held the opposite, allowing his claims to proceed.
In recent years, these splits in how the law has been interpreted has created an ambiguous patchwork of rights and obligations for employers and employees. The confusion has only been amplified by the pendulous nature of US Politics and the changes that stem from changes in leadership at the Department of Justice and the Equal Employment Opportunity Commission.
In its ruling today, the Supreme Court clarified that the law of the land prohibits discrimination in employment on the basis of sexual orientation or transgender status, because such discrimination necessarily involves disparate treatment on the basis of sex. Justice Neil Gorsuch authored the opinion, with Justices Roberts, Ginsburg, Breyer, Sotomayor, and Kagan Joining. The opinion (which can be read in full here) focuses on the plain text of Title VII of the Civil Rights Act of 1964, which holds 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 with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.”
The Court rejected the employers’ arguments that their respective discrimination against Mr. Bostock, Mr. Zarda, and Ms. Stephens was not based on their sex, but rather only based on the fact that they were gay or transgender. Gorsuch wrote, “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.”
The ruling of the Supreme Court today was essential in clarifying the rights that employees have in the workplace. While Justices Alito and Thomas dissented, arguing that the majority’s opinion amounts to legislation from the bench, Title VII of the Civil Rights Act of 1964 has long held to be a cornerstone in taking strides toward equality in the workplace. While we as a society still have a long way to go to root out discrimination, the Bostock opinion will help ensure that gay and transgender employees have access to attorneys and the judicial system to protect their rights when they are infringed upon.