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Bostock v. Clayton County, Georgia, et al.; R.G. & G.R. Harris Funeral Homes, Inc. v. EEOC, et al.; Altitude Express, Inc., et al. v. Zarda, Nos. 17-1618 (U.S. Jun. 15, 2020)

On June 15, 2020, in a case in which the AAUP joined an amicus brief, the Supreme Court ruled that Title VII of the Civil Rights Act of 1964, which prohibits workplace discrimination based on race, sex, religion, or national origin (“Title VII”) protects gay and transgender workers. The court held that because sexual orientation and gender identity cannot be explained as traits that someone has without referring to the sex of the person, discriminating based on those traits constituted discrimination “because of sex,” which is prohibited by Title VII. Thus, in affirming that Title VII’s broad scope, the Supreme Court extended protection of a powerful federal anti-discrimination law to those individuals who identify as lesbian, gay, bisexual, or whose gender identity differs from their sex assigned at birth (“LGBTQ”).

The case arose from three consolidated cases involved LGBTQ individuals who were fired from their workplaces after their employer learned of their LGBTQ status. Three separate lawsuits were filed alleging that the terminations violated Title VII’s prohibition against discrimination based on sex. The Courts of Appeals issued conflicting decisions in these cases. In the lead case, Gerald Bostock, a county employee in Clayton County, Georgia, was fired after his employer learned that he is gay. He sued the county under Title VII for employment discrimination, but the Eleventh Circuit held that Title VII does not prohibit firing because of sexual orientation. In the second case, Donald Zarda was fired from his work as an instructor with a skydiving company in New York, and the Second Circuit found that Title VII does prohibit discrimination based on sexual orientation. In the third case, Aimee Stephens, a transgender woman, was fired after informing her employer, Harris Funeral Homes, that she would transition to live as a woman. She brought her claim to the Equal Employment Opportunity Commission (EEOC), which investigated and then sued her employer. The Sixth Circuit held that Title VII protects against discrimination because of transgender status. Because the decisions addressed the same issue, the Supreme Court consolidated the cases.

The amicus brief that the AAUP joined (with the Lawyers Committee for Civil Rights) argued that Title VII applies to workplace discrimination based on LGBTQ status since it is discrimination because of an individual’s sex. The amicus brief outlined how the history of Title VII has resulted in successful progress toward eradicating workplace discrimination and how it bars disparate treatment because of sexuality. As the amicus brief argued, carving out an exception in Title VII’s protections for LGBTQ individuals would be contrary to its text and other precedents. It would also leave those most vulnerable to workplace discrimination without protection, rendering Title VII unable to fulfill its purpose of eradicating discrimination in the workplace.

In an opinion following textualism, Justice Gorsuch (joined by Chief Justice Roberts, Ginsburg, Kagan, Sotomayor and Breyer) queried “We must decide whether an employer can fire someone simply for being homosexual or transgender.” The answer is definitively no. “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 role in the decision exactly what Title VII forbids.”  The question whether the phrase “because of . . . sex” means what it says in the context of employer actions prohibited by Title VII has been definitively answered—it does. That is, because sexual orientation and gender identity cannot be explained as traits that someone has without referring to the sex of the person, discrimination based on sexual orientation or gender identity is also because of an individual’s sex. The court also once again concluded that it makes no difference under the text of Title VII whether an employer intended also to discriminate based on an additional reason if sex is a basis for the decision. Discrimination “because of . . . sex” is simply prohibited.

Even though the ruling is a positive one, the court did not answer all potential questions about the experience of working LGBTQ people and the law. Questions remain about some practical details of workplace life, such as bathrooms and locker rooms, and about whether and how the rights of religious employers will interact with nondiscrimination laws in the future.