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Labor & Employment News Alert

In Landmark LGBT Case, SCOTUS Rules That Title VII Prohibits Gay and Transgender Discrimination

June 15, 2020

By: Mark H. Dellinger and Karl F. Kumli

Today, the Supreme Court of the United States handed down a decision affecting the civil rights of employees nationwide. In Bostock v. Clayton County, Georgia, the Supreme Court held, in a 6-3 decision, that an employer who discharges an individual for being “homosexual or transgender” violates Title VII of the Civil Rights Act of 1964. The Court’s opinion, which can be accessed here, resolved three separate cases. 

The question before the Supreme Court was whether Title VII’s anti-discrimination provisions, which prohibit discrimination on the basis of “race, color, religion, sex, or national origin,” extend to LGBT employees. In writing for the majority, Justice Neil Gorsuch concluded that Title VII protects gay and transgender employees from discrimination:

Today, we must decide whether an employer can fire someone simply for being homosexual or transgender. The answer is clear. 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 undistinguishable role in the decision, exactly what Title VII forbids.

The Supreme Court drew on several precedents to support its ruling. Importantly, the Court noted that sex discrimination under Title VII is proven under a “but-for standard,” meaning that if sex discrimination was part of the rationale behind an employment action, actionable discrimination has occurred. A violation of Title VII therefore takes place when an employer intentionally relies, in part, on an employee’s sex when deciding whether to discharge the employee. In this regard, because discrimination on the basis of an employee’s sexual orientation or transgender status requires an employer to intentionally treat employees differently because of their sex, an employer who intentionally discriminates against an employee based on sexual orientation or transgender status violates Title VII. 

In finding that workplace discrimination based on sexuality and gender identity are inherently tied to an employee’s sex, the Supreme Court has expanded the protections of Title VII to a new group of employees. The textualist approach used by Justice Gorsuch, an appointee of President Trump and a member of the Court’s more conservative wing, made it clear that any discrimination based on sexuality or gender identity was prohibited under the plain text of Title VII. Consequently, this decision may impact how state appellate courts determine whether LGBT employees are protected under analogous state civil or human rights statutes. The impact this decision may have on state courts may not be known for some time, but its impact on employers nationwide is immediate.    

What are the employer takeaways from this decision?

  1. An employer with 15 or more employees is covered by Title VII and therefore can be liable for sexual orientation or transgender discrimination.
  2. Employers who are covered by Title VII should update their employee handbooks and policies to make clear that sexual orientation and transgender discrimination are prohibited.
  3. Employers who are covered by Title VII should provide training to their employees which addresses discrimination or harassment based on an individual’s sexual orientation or transgender status, as well as retaliation or reprisal for reporting complaints based on those protected characteristics.
  4. The Supreme Court’s decision may impact how state appellate courts construe parallel state civil or human rights statutes.  While some states and municipalities already protect LGBT rights, many do not. The Supreme Court’s decision may persuade state appellate courts to interpret corresponding state statutes as providing protection against discrimination based on sexual orientation or transgender status. If these protections are extended to state statutes, employers will be subject to actions in either state or federal court, including potentially greater damages exposure. Likewise, small employers with fewer than 15 employees may be subject to liability depending on coverage under state statutes. 


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