In a landmark decision, the United States Supreme Court determined on June 15, 2020 that most gay and transgender workers are protected under federal law from employment discrimination. Justice Gorsuch delivered the Court’s 6-3 opinion in Bostock v. Clayton County.[1]
The issue in Bostock was one of statutory construction. Title VII of the Civil Rights Act of 1964 makes it “unlawful for an employer to fail or refuse to hire or discharge any individual, or otherwise to discriminate against any individual . . . because of such individual’s race, color, religion, sex, or national origin.”[2] The Court considered whether the phrase “because of sex” prohibits discrimination based on sexual orientation and gender identification or instead is limited to the biological distinctions between male and female.
While acknowledging that the drafters of Title VII did not intend to protect transgender and homosexual employees, Justice Gorsuch nonetheless stated that the ordinary public meaning of the statute made it impossible to discriminate against a person based on homosexuality or transgender status without discriminating against the same person based on sex. Additionally, Justice Gorsuch placed considerable importance on the statute’s requirements to consider each individual rather than a group of people.
Justice Alito (joined by Justice Thomas) and Justice Kavanaugh wrote dissenting opinions. Justice Alito insisted that the majority of the Court had deviated from the role of the judiciary and engaged in “legislation” in reaching its opinion. Among other things, the dissent noted that a number of bills had been introduced to amend Title VII but had never been passed by Congress.
Additionally, the dissenting opinions raised concerns that the majority opinion would affect other areas of the law such as enabling transgender athletes to arguably compete unfairly and allow individuals to use the bathroom of their choosing. These concerns were addressed by Justice Gorsuch who claimed that the decision in Bostock was limited to employment law.
The Court in Bostock acknowledged that its decision in favor of homosexual and transgender rights in employment was an “unintended consequence” of Title VII. However, it is now clear that employers subject to Title VII need to consider sexual orientation and gender identification as protected classes when making employment decisions.
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[1] Three cases were actually before the Court. In addition to Bostock, the Court also considered the Sixth Circuit’s decision in Stephens v. R.G. & G.R. Harris Funeral Homes and the Second Circuit’s decision in Zarda v. Altitude Express.
[2] 42 U.S.C. Section 2000e-2(a)(1).
Contributing Attorneys:
David P. Pierce
Marc L. Fleischauer
Benjamin A. Mazer
