Trial News

In a landmark decision, the U.S. Supreme Court has held 6-3 that firing employees for being gay or transgender violates Title VII of the Civil Rights Act of 1964. The ruling makes workplace discrimination on the basis of sexual orientation or gender identity illegal under the federal law, and attorneys have called it a significant victory for LGBT rights. (Bostock v. Clayton Cty., Ga., 2020 WL 3146686 (U.S. June 15, 2020).)

The decision resolves three consolidated cases—Bostock v. Clayton County, Georgia (No. 17-1618); Altitude Express, Inc. v. Zarda (No. 17-1623); and R.G. & G.R. Harris Funeral Homes, Inc. v. EEOC (No. 18-107). Bostock and Zarda were brought by Gerald Bostock and Donald Zarda, each a gay man, and Harris Funeral Homes was brought by Aimee Stephens, a transgender woman. All were fired after their employers learned they are LGBT, and all sued for discrimination under Title VII. The Second and Sixth Circuits ruled that Zarda and Stephens’s claims were valid, while the Eleventh Circuit affirmed the dismissal of Bostock’s lawsuit. The Supreme Court granted certiorari in April 2019, and AAJ signed on to an amicus curiae brief with 58 civil rights organizations in support of the employees. Zarda died in 2014 and Stephens died in May 2020, but their cases continued on their behalf.

After oral arguments in October 2019, commentators identified Justice Neil Gorsuch as a potential swing vote for the employees, as Trial News previously reported. Justice Gorsuch wrote the majority opinion in the employees’ favor, joined by Chief Justice John Roberts and Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan.

Throughout the decision, the Court focused on the “express terms” of Title VII and their “ordinary public meaning” in 1964. Asked whether the statute’s prohibition of employment discrimination “because of . . . sex” encompasses sexual orientation and gender identity, the Court wrote that “the answer is clear: 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 necessary and undisguisable role in the decision, exactly what Title VII forbids.”

The opinion offered several scenarios in which firing gay or transgender employees would be unlawful and noted that employment actions based on sex discrimination violate Title VII even when that discriminatory motive is one of several but-for causes. It also emphasized that the analysis should focus on the treatment of individual employees—not aggregate groups. “[A]n employer cannot escape liability by demonstrating that it treats males and females comparably as groups,” the Court wrote, after citing Los Angeles Department of Water and Power v. Manhart (435 U.S. 702 (1978)) and Oncale v. Sundowner Offshore Services, Inc. (523 U.S. 75 (1998)). Thus, an employer that fires a woman for being insufficiently feminine and then fires a man for being insufficiently masculine does not negate its liability under Title VII—it “doubles it.”

The Court then summarized the employers’ arguments and explained why each failed to disturb its holding. It highlighted the employers’ assertion that Congress in 1964 did not intend the words “because of . . . sex” to protect sexual orientation and gender identity. The Court rejected this criticism because it was not based on the statutory language; rather than suggesting that Congress understood the text of Title VII to carry “some other meaning,” the employers argued that “because few in 1964 expected today’s result, [the Court] should not dare to admit that it follows ineluctably from the statutory text.”

In closing, the majority returned to Title VII’s language—and the Court’s role in interpreting it. “In Title VII, 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.”

Justice Samuel Alito wrote a lengthy dissent with supporting appendices sharply criticizing the majority decision as “legislation.” Joined by Justice Clarence Thomas, Justice Alito argued that Congress in 1964 “indisputably did not” protect gay and transgender employees and has chosen since then to exclude them from Title VII protections by not amending the statute to include the terms “sexual orientation” and “gender identity.”

Justice Brett Kavanaugh filed a separate dissent focusing on the ordinary meaning of Title VII, which he concluded did not protect gay and lesbian employees, as written in 1964. Justice Kavanaugh did not discuss gender-identity discrimination but indicated in a footnote that his analysis of sexual orientation discrimination could be applied in that context “in much the same way.”

“It was not the decision I expected—and I am elated that my expectations were not met,” said Tierra Verde, Fla., attorney Laura Yaeger, a cofounder of AAJ’s LGBT Caucus. “As the Court states: ‘Those who adopted the Civil Rights Act might not have anticipated their work would lead to this particular result. . . . But the limits of the drafters’ imaginations supply no reason to ignore the law’s demands. When the express terms of the statute give us one answer and extratextual considerations suggest otherwise, it’s no contest. Only the written word is the law, and all persons are entitled to its benefit.’ This landmark decision gives me hope that an oath to the Constitution still means something.”

New Orleans attorney Zachary Wool, who also cofounded the LGBT Caucus, applauded the decision, while noting the significant work that remains in the fight for equal rights. “As Justice Gorsuch wrote simply and beautifully: ‘An employer who fires an individual merely for being gay or transgender violates the law.’ Despite victories such as this, we must remain vigilant; just last week, for example, the Trump administration reversed an Obama-era policy extending civil rights protections to the transgender community in the context of health care. Equality won out at the Supreme Court in the Bostock decision, but the march for LGBT equality continues.”