Written by Jeremy Mittman and Corey Singer

The U.S. Supreme Court issued another pivotal win in the movement for LGBT equality today, ruling that the workplace prohibition on gender bias in Title VII of the Civil Rights Act also protects workers from discrimination based on sexual orientation and gender identity.  

Justice Neil Gorsuch, writing for the Court, in a 6-3 opinion, held that a worker’s “homosexuality and transgender status are inextricably bound up with sex” and as a result, “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”  Bostock v. Clayton Cty, Ga., 590 U.S. __ (2020).  Chief Justice John G. Roberts and Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan joined his opinion.

The decision concerned three different cases, each where a long-time employee was fired shortly after the employee revealed that he or she was homosexual or transgender—and allegedly was fired for no reason other than his or her homosexual or transgender status. 

Title VII of the Civil Rights Act bans employment discrimination on the basis of race, religion, national origin and sex.  See 42 U. S. C. §2000e-2(a).  The statute, however, does not explicitly prohibit discrimination based on sexual orientation and sexual identity.  On this basis, several federal appeals courts have interpreted Title VII to not apply to gay and transgender workers. 

The Supreme Court resolved the split among circuit courts, finding in unequivocal terms that discrimination “because . . . of sex” under Title VII applies to gay and transgender workers.  The Court began its analysis by looking at the ordinary plain meaning of the statute’s language at the time of its adoption and reasoned that “a straightforward rule” emerges that “an employer violates Title VII when it intentionally fires an individual based in part of sex.” 

Applying that rule, Justice Gorsuch provides the example of two employees, both of whom are attracted to men.  The two individuals are, to the employer’s mind, materially identical in all respects, except that one is a man and the other is a woman.  “If the employee fires the male employee for no reason other than the fact he is attracted to men,” Justice Gorsuch determined that “the employer discriminates against him for traits or actions it tolerates in his female colleague.”  In doing so, “the employer intentionally singles out an employee to fire based in part on the employee’s sex, and the affected employee’s sex is a but-for cause of his discharge.”  That conclusion also holds true for a transgender person who was identified as a male at birth but who now identifies as a female.  In both instances, the Court held that the “employee’s sex plays an unmistakable and impermissible role in the discharge decision.”

“Because discrimination on the basis of sexual orientation and gender identity requires an employer to intentionally treat individual employees differently because of their sex,” the Supreme Court concluded that, “an employer who intentionally penalizes an employee for being homosexual or transgender also violates Title VII.”

In addition, the Court determined that Title VII’s prohibition of sex discrimination has significant reach, finding that it “is written in starkly broad terms [and] has repeatedly produced unexpected applications.”   Employees may use this expansive reading against employers in future litigation to expand the scope of sex discrimination further.  At a minimum, the ruling provides a roadmap for how the Court may analyze cases regarding other provisions in Title VII, as the ruling declined to address much-discussed topics like transgender access to bathrooms and locker rooms.

Justice Clarence Thomas, Samuel Alito, and Brett Kavanaugh dissented.  Justice Alito wrote, in an opinion that Justice Thomas joined, that Congress “indisputably did not” intend to bar employers from discriminating against gay and transgender workers when it enacted Title VII and accused the majority opinion of legislating from the bench.  Justice Kavanaugh argued that Title VII “as written” does not prohibit workplace discrimination because of sexual orientation or gender identity, claiming it was “Congress’s role, not this Court’s, to amend Title VII.” 

To the extent that employers do not already include sexual orientation and gender identity as protected categories in their anti-harassment and nondiscrimination policies, they should quickly do so now.