By Gary Fowler

On June 15, 2020, the Supreme Court of the United States, in a 6-3 opinion, held that firing an individual merely for being gay or transgender violates Title VII’s prohibition against sex discrimination. Prior to the opinion, at least two Courts of Appeals had held that Title VII prohibited such discrimination, while the Eleventh Circuit recently held (and other courts had previously held) that discrimination based on sexual orientation was not prohibited by Title VII. The opinion in Bostock v. Clayton County, Ga. resolves that Circuit split.

The case arose out of three different cases in which an individual was fired after the employer learned that the employee was gay or transgender. One employee was fired for conduct “unbecoming” a county employee when he joined a gay recreational softball league. A second was fired after he mentioned he was gay. A third employee, who worked for a funeral home, presented as a male employee when hired, but two years later, was terminated after she informed her employer that she planned to live and work full-time as a woman.

The majority opinion, written by Justice Gorsuch, noted that Title VII makes it “unlawful…for an employer to …discharge any individual, or otherwise to discriminate against any individual,…because of such individual’s … sex….” The majority reasoned that, because discrimination on the basis of homosexuality or transgender status requires an employer to intentionally treat individuals differently because of their sex, an employer who intentionally penalizes an employee for being homosexual or transgender also violates Title VII.

The Court stated that it was relying upon the plain, unambiguous meaning of Title VII. The Court explained that 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.” Op. at 2. Therefore, the Court reasoned, the decision was made “because of” sex. The Court noted that if an employer fired a woman for being insufficiently feminine and a man for being insufficiently masculine, the employer, in both cases, would be firing the individual because of their respective sex. Likewise, the Court stated that, if an employer fired a man because he was attracted to other men, but not a woman, who was attracted to men, the employer would be firing the man based upon his sex.

The Court pointed to earlier decisions supporting its reading of the text of Title VII. In Phillips v. Martin Marietta Corp., 400 U.S. 542 (1971), the Court noted that it had held that an employer violated Title VII because it refused to hire women with young children but did hire men with children the same age. The Court rejected the employer’s argument in that case that it was not discriminating on the basis of gender merely because, as a whole, it tended to favor hiring women over men. In Los Angeles Dept. of Water and Power v. Manhart, 435 U.S. 702 (1978), the Court held that a provision requiring women to make larger pension fund contributions than men violated Title VII, even though the local government argued that it required the larger contributions due to longer life expectancy for women. In both of those cases, the Court said that the individual plaintiff was discriminated against because of her sex even though the employer argued the employer argued that it treated women as a whole equally. Finally, in Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998), a male plaintiff alleged that he was singled out by his male co-workers for sexual harassment. The plaintiff alleged that the harassment would not have occurred but for his sex—that is, he would not have suffered similar treatment if he were female. The Court similarly recognized in that case that a claim that harassment occurred because of a male claimant’s sex stated a Title VII claim even though other males did the harassing.

Three justices (Justice Alito, joined by Justice Thomas and Justice Kavanaugh) dissented, primarily arguing that the Court read the statute literally rather than in its ordinary meaning in the context of Title VII’s passage in 1964. The dissents also argued that the Court should have left whether Title VII extended to sexual orientation to Congress. While Justice Alito argued that the opinion could have broader implications in the contexts of other statutes and situations, the Court noted that such questions were for future cases and particularly noted that the case did not involve a religious organization or the application of the Religious Freedom Restoration Act.

Employers should consider the practical implications of the decision. Even for those employers who would not knowingly take any decision based on an employee’s sexual orientation, employee handbooks should be reviewed to ensure consistency with the opinion. Employee training should be updated to specifically consider examples of potential discrimination or harassment based upon gender identity. For example, employees should be reminded to use discretion and good judgment before asking about or commenting on an employee’s personal life, and particularly protected categories such as race, religion, national origin, age, disability, sex, and sexual orientation.

Meet Gary

W. Gary Fowler advises and defends his clients on labor and employment matters, with particular interest in executive compensation and contracts, covenants not to compete, and disability law. Gary is recognized for his experience in the Americans with Disabilities Act and for his knowledge of covenants not to compete, which are particularly complex under Texas law. A Co-Chair of Jackson Walker’s Labor & Employment group, Gary is Board Certified in Labor and Employment Law and frequently speaks on non-competition issues and employment law. Since 2006, The Best Lawyers in America has recognized Gary for his work in Labor and Employment Law – Management and, in 2017, named him Lawyer of the Year for Dallas in that category.

The opinions expressed are those of the author and do not necessarily reflect the views of the firm, its clients, or any of its or their respective affiliates. This article is for informational purposes only and does not constitute legal advice.