In a 6-3 opinion authored by Justice Gorsuch, a conservative, the Supreme Court has ruled that Title VII’s civil rights protections extend unequivocally to LGBTQ employees. Chief Justice Roberts and Justices Ginsburg, Breyer, Sotomayor, and Kagan joined the majority opinion. Currently, fewer than half of the states have laws barring discrimination based on an employee’s sexual orientation and/or gender identity, so this ruling will have sweeping implications across the country. 

The Court consolidated the following three cases for review:

  • Altitude Express, Inc. v. Zarda — A former employee accused his employer of firing him for telling a client he was gay. The Second Circuit held that Title VII prohibits discrimination based on sexual orientation.
  • Bostock v. Clayton County, Georgia — The plaintiff, a longtime employee, was terminated for conduct “unbecoming” of a county employee shortly after participating in a gay softball league. The 11th Circuit held that the employee did not have a viable cause of action under Title VII because he was allegedly fired because of his sexual orientation, not his “sex.”
  • R.G. & G.R. Harris Funeral Homes, Inc. v. EEOC — This is the only case out of the three which involves a transgender worker. The plaintiff employee who presented as male during the first six years of employment was terminated after informing her employer that she was transitioning and planned to “live and work full-time as a woman.”

In yesterday’s decision, known as Bostock v. Clayton County, Georgia, the Court held “Congress adopted broad language making it illegal for an employer to rely on an employee’s sex when deciding to fire that employee.  We do not hesitate to recognize today a necessary consequence of that legislative choice: An employer who fires an individual merely for being gay or transgender defies the law.” The Court also explained that Title VII discrimination requires sex to be a “but-for” cause of the employment decision, and discrimination based on sexual orientation or gender identity “necessarily and intentionally applies sex-based rules.”

Justice Alito, joined by Justice Thomas, filed a dissent stating that the appropriate question before the Court is whether in 1964 Congress intended “sex” to include sexual orientation or gender identity. In his view, it did not. Justice Kavanaugh also dissented, taking a similar approach and finding that Title VII must be amended by Congress to afford protections to LGBTQ employees. Although he did not join the majority, Justice Kavanaugh acknowledged the significance of the Court’s decision for LGBTQ Americans.   

Many states and municipalities have amended their fair employment practices laws expressly to prohibit employment discrimination on the basis of sexual orientation and gender identity or expression. In these jurisdictions, the reach of the Supreme Court’s decision in the employment sphere will be limited. But, in those states which do not protect LGBTQ rights in employment, this decision will be a sea change in the law and in the civil rights protections afforded to those employees. In addition, it remains to be seen how much of an impact this ruling will have outside the employment arena, with respect to federal laws governing such items as housing, medical care, and public accommodations.

Ballard Spahr’s Labor and Employment Group routinely helps employers investigate and defend allegations of discrimination, drafts policies to address equal employment opportunities, and counsels employers on their rights and obligations under federal, state, and local laws.

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