Supreme Court Clarifies: Title VII Protects Gay and Transgender Employees

On Monday, June 15, 2020, the United States Supreme Court issued a landmark decision in Bostock v. Clayton County, Georgia, confirming that Title VII of the Civil Rights Act of 1964 prohibits employers from taking discriminatory action against an employee or potential employee based on their sexual orientation or transgender status.

This case is actually a consolidation of three similar cases. Gerald Bostock worked for Clayton County, Georgia. After a decade with the County, he began participating in a gay recreational softball league. Shortly thereafter, influential members of the community made disparaging remarks about Bostock’s sexual orientation and his participation in the league and he was soon fired for conduct “unbecoming” of a county employee. Donald Zarda was a skydiving instructor at Altitude Express in New York. Despite working for the company for several seasons, a few days after openly commenting that he was gay, he was fired. Aimee Stephens worked at R.G. & G.R. Harris Funeral Homes in Garden City, Michigan. When originally hired, Ms. Stephens presented as a male. Two years into her service with the company she was diagnosed with gender dysphoria and it was recommended she live as a woman. In her sixth year in the company she wrote a letter to her employer explaining her transgender status and notifying the employer that she would live and work full-time as a woman after she returned from a planned vacation. The funeral home fired her before she left, telling her “this is not going to work out”.

Title VII makes it “unlawful . . . for an employer to fail or refuse to hire or to discharge any individual, or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex or national origin.” The issue before the Court was whether “because of . . . sex” encompassed sexual orientation or transgender status. The Court found that it does.

The premise behind the opinion is actually quite simple: it is impossible to discriminate against an individual for being homosexual or transgender without also discriminating against them based on their gender.

Justice Gorsuch employs the following hypothetical:

Imagine an employer who has a policy of firing any employee known to be a homosexual. The employer hosts an office holiday party and invites employees to bring their spouses. A model employee arrives and introduces a manager to Susan, the employee’s wife. Will that employee be fired? If the policy works as the employer intends, the answer depends entirely on whether the model employee is a man or a woman. To be sure, that employer’s ultimate goal might be to discriminate on the basis of sexual orientation. But to achieve that purpose the employer must, along the way, intentionally treat an employee worse based in part on that individual’s sex.

Because this case interprets and clarifies the meaning of statutory text, it provides broad and immediate relief to individuals who have been the subject of discrimination in the workplace on the basis of their sexual orientation or gender identity. Title VII is a federal law which applies to all businesses which employ 15 or more employees.

Employers should take this opportunity to review personnel handbooks and internal policies to ensure that they remain in compliance with Title VII and take steps to inform and train employees on the company's internal policies, including any reporting procedure.

Likewise, employees who believe they have been subjected to workplace discrimination should be familiar with their rights. Every case is different so you should consult with an attorney familiar with labor and employment law about the particular facts of your case. In addition to internal reporting procedures that may apply, Title VII requires the filing of an administrative charge with the EEOC or the corresponding state agency (in Kansas, the Kansas Human Rights Commission) prior to taking legal action. There are deadlines associated with the filing of these administrative charges so it is important to file promptly in order to preserve your rights.

Danielle N. Davey is an attorney licensed to practice in state and federal courts in Kansas. Ms. Davey works with both employers and employees with regard to compliance with state and federal employment laws and remedies for violations. If you have questions about Title VII, the Bostock case, or your rights or obligations under either, call Danielle at 785-357-6311.

The information and materials on this blog are provided for general informational purposes only and are not intended to be legal advice. The law changes frequently and varies from jurisdiction to jurisdiction. Being general in nature, the information and materials provided may not apply to any specific factual and/or legal set of circumstances. No attorney-client relationship is formed nor should any such relationship be implied. Nothing on this blog is intended to substitute for the advice of an attorney, especially an attorney licensed in your jurisdiction. If you require legal advice, please consult with a competent attorney licensed to practice in your jurisdiction.