Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating on the basis of race, color, religion, sex, or national origin. 42 U.S.C. §2000e-2(a)(1). On June 15, 2020, the United States Supreme Court, in a 6-3 opinion authored by Justice Neil Gorsuch and joined by Chief Justice John Roberts and four other justices, held that Title VII barred employers from discriminating against individuals who are gay or transgender because those characteristics are inextricably related to sex. According to the opinion, this result is based on the plain text of Title VII, as well as the Court’s long history of broadly construing its protections.
The case before the Court involved three separate instances of discrimination. Gerald Bostock, a child welfare advocate employed by Clayton County, Georgia, was terminated for conduct “unbecoming” a county employee when he started participating in a gay recreational softball league. Donald Zarda was a skydiving instructor in New York and was fired after he mentioned that he was gay. And Aimee Stephens was employed at a funeral home in Michigan and was fired after announcing her intention to begin living and working full-time as a woman following a diagnosis of gender dysphoria. Each employee sued under Title VII arguing that they had been fired on the basis of sex. The Eleventh Circuit ruled against Bostock and held that Title VII did not prohibit employers from discrimination on the basis of sexual orientation. The Second and Sixth Circuit ruled that Title VII prohibited discrimination on the basis of sexual orientation and gender identity. Thus, the Supreme Court was to resolve the split.
The majority opinion held that Title VII’s protections are extended to gay and transgender individuals because discrimination on these bases is inextricably tied to a person’s sex. The Court provided an illustration of the concept:
Consider, for example, an employer with two employees, both of whom are attracted to men. The two individuals are, to the employer’s mind, materially identical in all respects, except that one is a man and the other a woman. If the employer fires the male employee for no reason other than the fact that he is attracted to men, the employer discriminates against him for traits or actions it tolerates in his female colleague. Put differently, the employer intentionally singles out an employee to fire based in part on the employee’s sex, and the affected employee’s sex is a but-for cause of his discharge.
The Court rejected the argument that it should look to the legislative history and intent of Title VII. The Court also rejected the view that because this result may not have been anticipated by Congress when it passed Title VII., Finally, the Court rejected the argument that because the discrimination applies equally to women and men – in that a gay men and women may equally be fired for being gay – there is no violation of Title VII, noting, “an employer who intentionally fires an individual homosexual or transgender employee in part because of that individual’s sex violates the law even if the employer is willing to subject all male and female homosexual or transgender employees to the same rule.”
Although the Court’s broad ruling in Bostock has sweeping consequences for employment discrimination, the prohibition against discrimination is based upon Title VII, which can be amended by Congress. Nevertheless, the ruling is a significant milestone for equal protection.