Supreme Court Extends Title VII to Discrimination on the Basis of Sexual Orientation and Gender Identity

On June 15, 2020, the Supreme Court of the United States issued an opinion in Bostock v. Clayton County, Georgia, holding that an employer who discriminates against an employee because of their sexual orientation or gender identity violates Title VII of the Civil Rights Act of 1964.

The opinion was the culmination of three cases brought by Gerald Bostock, Donald Zarda, and Aimee Stephens. Bostock had worked for Clayton County, Georgia as a child welfare advocate. When he joined a gay recreational softball league, he was terminated for conduct “unbecoming” a county employee. Zarda was a skydiving instructor in New York and, after mentioning that he was gay, was fired. Stephens worked at a funeral home in Michigan. When she was hired, Stephens presented as a male. Two years into her work with the company, Stephens came out as transgender and informed her employer that she would “live and work full-time as a woman.” She was similarly fired.

Title VII makes it “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.” In Bostock, the Court was tasked with determining whether firing an individual because of their sexual orientation or gender identity was unlawful discrimination because of sex.

The Court necessarily began with the biggest issue in the case: defining “sex.” The Court noted that there were multiple potential definitions but, at a minimum, the parties could agree that it encompassed “status as either male or female as determined by reproductive biology.” With respect to sexual orientation or gender identity, the Court found that “it is impossible to discriminate against a person” on the basis of their sexual orientation or gender identity “without discriminating against that individual based on sex.” In other words, the Court explained, sexual orientation and gender identity “are inextricably bound up with sex.” As a result, any consideration of sexual orientation or gender identity with regard to employment decisions necessarily required an intentional and impermissible consideration of “sex” as prohibited by Title VII. As the employers in Bostock admitted that they fired Bostock, Zarda, and Stephens because of their sexual orientation or gender identity, the Court found violations of Title VII.

While the Court was careful to limit its holding to the facts presented (i.e. whether an employer who fires someone because of their sexual orientation or gender identity violates Title VII), the opinion likely has wide-ranging consequences. The number of federal statutes which prohibit discrimination based on “sex” is wide-ranging and includes federal anti-discrimination statutes governing housing, education, and public accommodations. Given the Court’s reasoning in Bostock, it is likely that courts applying federal law will begin to apply this understanding of “sex” in those varied federal anti-discrimination statutes immediately.

The opinion is an interpretation of the word “sex” in Title VII, rather than a change in the law. As a result, Bostock’s interpretation of “sex” within Title VII of the Civil Rights Act is retroactive and applies to both past and future employment decisions. As a result, any pending or potential cases will be governed by Bostock and some individuals might strive to have recently resolved cases reopened.

Given this major change in anti-discrimination law, be sure to contact an attorney with questions you may have and to ensure that your employment practices and employee handbooks are up-to-date and compliant with this interpretation of the law. Our attorneys at Bell, Orr, Ayers & Moore, P.S.C. (BOAM) are continuing to work for you, so feel free to contact your BOAM attorney, Timothy Edelen, or Ian Loos, if you have questions at edelen@boamlaw.com, loos@boamlaw.com or 270-781-8111, or any member of our Employment practice area.

Please note that the foregoing summary does not constitute legal advice. Please contact an attorney to address any specific concerns you may have.