Supreme Court Rules 6-3: Sexual Orientation and Sexual Identity Discrimination Violates Title VII

Labor & Employment Workforce Watch
July 2020

On June 15, 2020, in a landmark 6-3 decision, the U.S. Supreme Court issued its highly anticipated opinion in Bostock v. Clayton County, Georgia holding that discrimination on the basis of sexual orientation or sexual identity constitutes sex discrimination in violation of Title VII of the Civil Rights Act of 1964.

As expected, Justices Ginsburg, Breyer, Sotomayor, and Kagan took the side of the employees, joining in the opinion of the Court. Surprisingly, Justice Gorsuch, President Trump’s 2017 Supreme Court nominee, delivered the opinion. Justices Alito, Thomas, and Kavanaugh dissented.

Bostock combined three cases involving the critical issue of sex discrimination. Zarda v. Altitude Express, out of the Second Circuit, and Bostock v. Clayton County, out of the Eleventh Circuit, raised the question whether discrimination based on sexual orientation is prohibited by Title VII. And R.G. & G.R. Funeral Homes v. EEOC, on appeal from the Sixth Circuit, addressed protection for transgender individuals, asking whether it was illegal for an employer to terminate a male employee after he declared he would transition to dressing as a female and undergo sex re-assignment surgery.

In all three cases, the Court held that Title VII prohibited discrimination against individuals based on sexual orientation and sexual identity. Citing the “necessary and undisguisable role” sex plays in each instance, the Court opined that sex is necessarily a “but-for” cause in any termination decision based on an employee’s sexual orientation or sexual identity. As an example, Justice Gorsuch proposed that if a company has two virtually identical employees with virtually identical qualities—one male, one female—who both are attracted to men, terminating the male employee because of his attraction to men would constitute discrimination against that male employee because of “traits or actions it tolerates in his female colleagues.” That is, unlike other traits that may distinguish employees, like tardiness or incompetence, “homosexuality and transgender status are inextricably bound up with sex.”

Although recognizing the need to establish anti-discrimination laws that protect homosexual and transgender individuals, Justices Alito, Thomas, and Kavanaugh dissented on the basis that Title VII is simply not the mechanism to do so. Justice Alito, with Justice Thomas joining, opined that “sex” is a separate concept from “sexual orientation” and “sexual identity” such that discrimination based on the latter two categories does not implicate discrimination on the basis of sex. He faulted the majority with applying a modern definition of “sex” that was not only unanticipated, but would have been rejected in 1964.

Justice Kavanaugh devoted his dissent to calling out the majority’s “literalist” approach, urging that in its interpretation of “discriminate based on sex,” the majority effectively “split statutory phrases into their component words, look[ed] up each in a dictionary, and then mechanically put them back together again.”

The dissents also raised numerous policy considerations, including the unknown effect on other anti-discrimination statutes that prohibit sex discrimination. The Court majority refused to opine on the extent to which its opinion extends to those statutes, and eyes will be on case law construing them to see how far Bostock will stretch.

The Supreme Court’s decision is viewed as a big win by proponents of LGBT rights and anti-discrimination laws. Though it is currently unclear the extent to which this decision will extend to laws and employment policies outside of Title VII, we recommend that all companies review their internal company handbooks, policies, and procedures and employee training, and consult with internal or external counsel in order to ensure compliance with Title VII as well as with analogous laws that may be deemed to afford similar protections.