As employers are well aware, Title VII of the Civil Rights Act of 1964, as amended by Congress in 1991, prohibits them from failing or refusing to hire or from discharging any individual, or otherwise from discriminating against an individual “because of” that individual’s sex, even if other factors in addition to sex motivated the employers’ actions. 42 U.S.C. §§ 2000e-2(a)(1) and (m).
In Bostock v. Clayton County, the United States Supreme Court resolved a long-standing question regarding whether Title VII of the Civil Rights Act of 1964 protects gay and transgender employees from discrimination in the workplace. In a 6-3 decision, the Court concluded that it does. As a result, employers face liability under Title VII for conduct that treats gay and transgender employees differently from similarly situated heterosexual or cisgender employees.
Bostock is a consolidation of three lower court appeals. Two of the lower court cases, from the Second and Eleventh Circuits, involved terminations of long-term employees who disclosed their homosexuality later in their employment. One employee worked for a Georgia county; the other employee worked for a private skydiving company. The third case, from the Sixth Circuit, involved a transgender employee of a funeral home who presented as male when hired and was fired after notifying the employer of intentions to live and work full-time as a woman. Each employee sued alleging sex discrimination under Title VII of the Civil Rights Act of 1964.
Writing for the majority, Justice Neil Gorsuch unequivocally stated, “[a]n 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. [Therefore,] [s]ex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”
For example, an employer who terminates a homosexual male employee for his attraction to other males, but tolerates female employees’ attraction to males has disparately treated the male employee because of his sex in violation of Title VII. Similarly, an employer violates Title VII when it terminates a transgender employee who, though born male, dresses as a female, but tolerates female employees who wear “feminine” attire. Simply put, in both scenarios, the employee’s sex is the key factor to the employer’s decision. The Court further emphasized that employers do not avoid Title VII liability if other factors in addition to the employee’s homosexuality or transgender status influenced their decision. If the employee’s sex was at least one but-for cause of the employer’s decision, the employer faces Title VII liability.
What the decision means for employers
The Bostock decision leaves open questions about the legality of decisions based on sexual orientation or gender identity in contexts such as use of bathrooms and locker rooms; participation on women’s sports teams; college dorm room assignments; religious organizations’ employment decisions; and access to healthcare benefits, including coverage for sex reassignment surgery.
While the law is in flux, employers should review their policies and employee training programs to ensure a more inclusive workplace that promotes equality and dignity for all employees irrespective of sexual orientation or gender identity. Such policies should consider and address recognition of employees by their preferred name, gender, and pronouns in workplace communications and in human resources records. Employers may also want to develop or revise workplace policies to address employees’ expressions of disapproval of same-sex relationships, sex reassignment procedures, or other gender transitions. Further, employers may also want to revisit their healthcare and other employee benefit plans to eliminate any discrimination against LGBTQ employees in coverage.
