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Legal Alert: Supreme Court holds that Title VII prohibits discrimination based on Sexual Orientation or Transgender Status (Bostock v. Clayton County, Georgia)

The U.S. Supreme Court has ruled in a 6-3 decision that Title VII of the Civil Rights Act prohibits employment discrimination because of “sex” for LGBTQ employees. The landmark decision—penned by Justice Gorsuch and joined in full by Justice Breyer, Ginsburg, Kagan, Sotomayor, and Chief Justice Roberts—unequivocally provides that when an employer fires an employee “for being homosexual or transgender,” that employer “fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”

Central to the Court’s decision is the statutory interpretation of Title VII, which makes it “unlawful . . . for any employer to fail to refuse to hire or to discharge any individual, or otherwise discriminate against any individual . . . because of such individual’s race, color, religion, sex, or national origin.” Relying upon the plain meaning of the statutory terms of “sex”, “because of”, “discriminate”, and “individual”, the Court makes clear that an employer violates Title VII “when it intentionally fires an individual based in part on sex,” even if “other factors besides the [employee’s] sex contributed to the decision” or even if “the employer treated women as a group the same when compared to men as a group.” Justice Gorsuch emphasizes that the key analysis for identifying a violation under Title VII is whether “changing the employee’s sex would have yielded a different choice by the employer.” Under this framework, the Court reasons that discrimination based on sexual orientation or transgender status are “inextricably bound up with sex” because, in both instances, the employer intentionally penalizes a person for traits or actions they would have otherwise tolerated in employees of the opposite sex.

In setting forth this framework, the Court rejects each of Respondent employers’ arguments in turn. First, the Court finds unpersuasive the argument that subsequent legislative proposals to add sexual orientation as a protected class indicate that Title VII does not protect against such discrimination. The Court instead provides that “speculation about why a later Congress declined to adopt new legislation offers a ‘particularly dangerous’ basis on which to rest an interpretation of existing law a different and earlier Congress did adopt.” Second, the Court rejects Respondent employers’ argument that protection of LGBTQ employees would have been an unexpected result of Title VII in 1964, reasoning that “legislative history… is meant to clear up ambiguity, not create it” and that a statute’s unexpected application to certain situations does not demonstrate ambiguity, but instead “demonstrates the breadth of a legislative command.”  Moreover, Justice Gorsuch challenges the way in which Respondent employers determine what, indeed, is an “expected” result since gay and transgender employees have filed Title VII complaints since at least 1974.

While the Bostock decision provides clear vindication and protection for LGBTQ employees, it should be noted that the Court, in response to the dissenting justices, limits today’s decision to instances in which individuals are terminated or otherwise discriminated against based on sexual orientation or transgender status under Title VII. Still unaddressed are employment policies or practices that pertain to sex-segregated bathrooms, locker rooms, dress codes, and objections to certain hiring decisions based on religious grounds.

HMBR’s Higher Education Group will continue to monitor the effects of this ruling. Should you have any questions or concerns about possible implications for your postsecondary institution, please feel free to contact us at 312-946-1800.

  Jun 16, 2020  |  By    |   On Education